Towards Sustainable Coastal Development : Institutionalizing Integrated Coastal Zone Management and Coastal Climate Change Adaptation in South Asia [1 ed.] 9789004282209, 9789004282193

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Towards Sustainable Coastal Development

Legal Aspects of Sustainable Development Series Editor David Freestone This series publishes work on all aspects of the international legal dimensions of the concept of sustainable development. Its aim is to publish important works of scholarship on a range of relevant issues including conservation of natural resources, climate change, biodiversity loss and the role of international agreements, international organizations and state practice.

VOLUME 20

The titles published in this series are listed at brill.com/lasd

Towards Sustainable Coastal Development Institutionalizing Integrated Coastal Zone Management and Coastal Climate Change Adaptation in South Asia By

Tony George Puthucherril

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Puthucherril, Tony George, author. Towards sustainable coastal development : institutionalizing integrated coastal zone management and coastal climate change adaptation in South Asia / by Tony George Puthucherril.   pages cm. — (Legal Aspects of Sustainable Development ; 20)  Includes bibliographical references and index.  ISBN 978-90-04-28219-3 (hardback : alk. paper) — ISBN 978-90-04-28220-9 (e-book) 1. Coastal zone management—Law and legislation—South Asia. 2. Coastal zone management— Government policy—South Asia. 3. Sustainable development—Law and legislation—South Asia. 4. Sustainable development—Government policy—South Asia. 5. Integrated coastal zone management—South Asia. 6. Climatic changes—Law and legislation—South Asia. I. Title.  KNC707.P88 2015  346.5404’6917—dc23 2014027749

This publication has been typeset in the multilingual ‘Brill’ typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see brill.com/brill-typeface. issn 1875-0923 isbn 978-90-04-2821 9 -3 (hardback) isbn 978-90-04-28220-9 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Global Oriental and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Dedicated to My Most Beloved Ammamma, the Late Mrs. Lily George

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Contents Series Editor’s Preface  xi Acknowledgements  xiii List of Tables  xv List of Figures  xvi List of Abbreviations  xvii 1 Introduction  1 1.1 Background  1 1.2 Nature and Scope  6

Part 1 The Problématique in Context 2 Threatened Coasts, Communities and Ecosystems: The Need for Integrated Coastal Zone Management  23 2.1 Introduction  23 2.2 Rising Seas  24 2.3 Receding Coastlines: Impact on Coastal Areas and Maritime Territories  32 2.4 Impact of Climate Change and Sea Level Rise on Coastal Communities  45 2.5 Climate Change Impacts on Coastal Resources and Ecosystems  56 2.6 Conclusion  70 3 Coastal Laws, Integrated Coastal Zone Management, and Coastal Climate Change Adaptation in South Asia  73 3.1 Introduction  73 3.2 Sea Level Rise, Integrated Coastal Zone Management, and Coastal Climate Change Adaptation in South Asia  76 3.3 A Coastal Law Audit of South Asia: An Overview  156 3.4 Conclusion  158

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Part 2 Linking Integrated Coastal Zone Management and Coastal Climate Change Adaptation for Sustainable Coastal Development 4 Understanding Sustainable Coastal Development  163 4.1 Introduction  163 4.2 The Dialectic of Sustainable Development  164 4.3 Sustainable Coastal Development  180 4.4 Conclusion  181 5 Linking Coastal Climate Change Adaptation to an Integrated Coastal Zone Management Process for Sustainable Coastal Development  182 5.1 Introduction  182 5.2 Defining ICZM  183 5.3 Decoding ICZM: The Devil is in the Details  188 5.4 ICZM: A Balancing Act  207 5.5 Climate Change Adaptation for Coastal and Marine Environments  210 5.6 Linking Coastal Climate Change Adaptation to ICZM: Two Sides of the Same Coin?  235 5.7 Conclusion  243

Part 3 The Legal Framework for Sustainable Coastal Development 6 Coastal Law, ICZM and Adapting to Sea Level Rise  247 6.1 Introduction  247 6.2 International Environmental Law and Integrated Coastal Zone Management  250 6.3 Integrated Coastal Zone Management and Adapting to Sea Level Rise through Coastal Law: Selected National Experiences  257 6.4 Conclusion  314 7 Law in the Service of ICZM and Coastal Climate Change Adaptation  315 7.1 Introduction  315 7.2 Law for Coastal Zone Management: Theoretical Considerations  315

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7.3 The Need for an ICZM Legal Framework: SWOT Analysis  327 7.4 ICZM Law Through Recent Decades: Where from Here?  338 7.5 Conclusion  343

Part 4 New Directions for Coastal Management Regional Regime-Building in South Asia 8 A Regional Regime for ICZM and Coastal Climate Change Adaptation in South Asia  347 8.1 Introduction  347 8.2 Coastal Management in South Asia: Regional and Sub-Regional Arrangements   350 8.3 Approaches to Legislating ICZM: Lessons from Other Regions  365 8.4 Regime Theory and Prospects for Regional ICZM Regime Building in South Asia  380 8.5 Building a South Asia Regional ICZM Regime: A SWOT Analysis  388 8.6 Conclusion  394 9 A Principled Approach to Sustainable Coastal Development in South Asia  395 9.1 Introduction  395 9.2 Form and Substance: Elements of a Regional ICZM Regime  396 9.3 Coastal Law Reform in South Asia: What Prospects?  414 9.4 Conclusion  416 10 Conclusion  417 10.1 Moving Towards Sustainable Coastal Development in South Asia  417 10.2 The Message  419 10.3 Epilogue  421 Selected Bibliography  423 Index  478

Series Editor’s Preface This is the twentieth volume in the Brill Nijhoff series on Legal Aspects of Sustainable Development published under my General Editorship. The aim of this series is to publish works at the cutting edge of legal scholarship that address both the practical and the theoretical aspects of this important concept. I am very pleased to be able to include this work by Dr Tony George Puthucherril in this series. It is in fact his second volume in the series. The previous volume, published in 2010, was the first major assessment of the 2009 International Maritime Organization’s International Convention for the Safe and Environmentally Sound Recycling of Ships.1 The industry he discussed in that work is based mainly in South Asia, with notoriously hazardous working conditions. He returns to the South Asia region in this volume— which is the revised version of his doctoral thesis at the Dalhousie University Law School. Dr Puthucherril starts his work with a quotation from The Mahabharata, an ancient Hindu text, which relates vividly how the ocean overwhelmed Lord Krishna’s city of Dwaraka. The Intergovernmental Panel on Climate Change in its 2014 Assessment Report predicts sea level rises over the next century which although more gradual seem likely to have similarly apocalyptic impacts on low lying areas and cities of the world, particularly in the Pacific and South Asia. The only long term solution is of course global agreement on hard hitting greenhouse gas mitigation measures, but in the meantime there is a lot that can be done to manage and adapt to coastal changes. The main tools are integrated coastal zone management and establishing linkage to systematic adaptation measures. International funding for this is being developed through bilateral mechanisms as well as from the Global Environment Facility and the new UNFCCC Green Climate Fund. This volume contains an encyclopedic treatment of the state of coastal zone law and coastal management regimes in South Asia. The author’s basic premise is that a proactive approach will be necessary in the region to address the large scale climatic impacts that can be expected. Obviously a great deal remains to be done. Based on a scholarly assessment of lessons to be learned from other

1 Tony George Puthucherril, From Shipbreaking to Sustainable Ship Recycling: Evolution of a Legal Regime. (Legal Aspects of Sustainable Development, Vol. 5), Brill, Leiden and Boston, 2010.

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regions, the work provides a comprehensive blueprint for regional action. It is also an important contribution to our understanding of sustainability in the context of coastal development in the age of climate change. David Freestone

Washington DC July 2014

Acknowledgements This Book is a revised and abridged version of a much larger doctoral thesis, which I recently completed at the Schulich School of Law, Dalhousie University. It goes without saying that re-engineering a thesis into a Book involves input and support from several quarters. I would not have been able to complete it were it not for the blessing of the Almighty, and the support of my family, elders, teachers, and friends. At the outset, I must express my gratitude to the Honorable Judge Sandra E. Oxner, O.C., Chairperson Commonwealth Judicial Education Institute, Halifax, whose generosity and support was integral to enabling my academic career in Canada to progress this far. I am also thankful to the Social Sciences and Humanities Research Council for awarding me the prestigious Vanier Canada Graduate Scholarship; without it, this research would have not been possible. I am grateful to Professor Aldo Chircop, Chair of the Supervisory Committee for my doctoral studies, for his keen interest in my research and academic development. I am thankful for the countless hours he spent with me, patiently discussing the different facets of this work. As well, I would like to express my appreciation to the other members of the Committee, namely, to Professor Lucia Fanning for helping me shape my understanding of the ICZM process and to Professor Meinhard Doelle, for his critical comments and thoughtprovoking questions. I must also acknowledge the encouragement I have received from the other faculty members at the Dalhousie University, namely from Professors Richard Devlin, David VanderZwaag, Moira L. McConnell, John A. Yogis, Q.C., Michael Deturbide, Q.C., Wayne MacKay, Q.C., and Suzanne Sheffield. I gratefully acknowledge materials and inputs I received at different stages of this study from Dr. Margaret E. Peloso, Vinson & Elkins LLP; Professor Jane McAdam, University of New South Wales; Dr. Rowena Maguire, Queensland University of Technology; and from Dr. Justine Bell, T.C. Beirne School of Law. My Professors in India have played significant roles in my academic development. In particular, my gurus, Professor (Dr.) N.R. Madhava Menon, IBA Chair on Continuing Legal Education, National Law School of India University, Bangalore, and Professor V. Vijayabalan, Former Principal, Government Law College, Trivandrum, have been instrumental in shaping my understanding of law and legal research. I am also grateful to the Honorable Justice Madan B. Lokur, Supreme Court of India; Honorable Justice Roshan Dalvi, High Court of Bombay; Professor (Dr.) P. Ishwara Bhat, Vice Chancellor, National University of Juridical Sciences; Dr. Kylasnatha Pillay, Senior Advocate, Supreme Court of

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India; and to Professor Sunny Mathew, Mar Ivanios College, for their encouragement. I also fondly remember and thank all my teachers right from Sunbeams (founded by my late Grandmother), Loyola, St. Joseph’s, and Mar Ivanios, to Kerala Law Academy Law College, the Kerala University Department of Law, and the National University of Juridical Sciences. I am blessed by a large circle of friends: Sabrina Mackenzie, Jyothi Mangatt, Jeanette Fleming, Heather Wilson, David Dzidzornu, Dr. Vu Hai Dang, Ying Lu, Geraldine May, Satyajit Surjyakant Sen, and Jessel Vinohar Rodricks. I am eternally in debt to all of them for their support and encouragement. This book has benefitted from the editorial and indexing assistance provided by David Dzidzornu and Emily Patten and I wholeheartedly acknowledge their efforts. I am also grateful to Professor David Freestone, the series editor, and to Marie Sheldon, Lisa Hanson and Judy Pereira of BRILL. Without their encouragement, timely support, and patience, this book would not have become a reality. Finally, I thank my family—my parents, Achachan and Mummy, Maya chechi and family, my maternal aunts, to all the boys at “Lily Lynne” (Melvin Uncle, Munna, Georgie, Babloo, Chintu, Jamie, Mittu and Vava) and to all members of the “Puthucherril” family. I am especially grateful to Aunt Minny who admirably stepped in at a crucial juncture, to carry out some of my personal obligations. As well, I am at a loss for words to describe my gratitude to my wife, Lekshmi Vijayabalan, for her unwavering support and unfaltering tolerance, and to my darling bundle of joy, Miriam George Puthucherril. To my church, Madre de deus at Vettucaud, Trivandrum, along with St. George Forane Church at Edathua and Our Lady of Health at Vailankanni: As you daily carry out your ministry of love and compassion to coastal communities impacted by the central problems discussed in this book, I hope my words give voice to the pain and loss you quietly and tirelessly seek to alleviate. How can I forget to mention my furry friends, Dougald, Bailey, Elle May and Pawsome? Dougald and Bailey have been up along with me for several nights sitting right next to my laptop, keenly observing each and every tap on the keyboard. Once again, a big thank-you to all of you! Tony George Puthucherril

Halifax, Nova Scotia July, 2014

List of Tables table Caption

1 CCCA Measures and SCD  222 2 Selected Coastal Laws and their Defining Features  310 3 SWOT Analysis on the Importance of a Legal Framework to Support ICZM  336 4 SWOT Analysis: Highlighting the Need for a Regional Regime in South Asia  393

List of Figures Figure Caption

1 2 3 4 5 6

Coastal South Asia  5 Elements of Sustainable Development  179 A Principled Approach to ICZM  191 Sustainable Coastal Development: Integrating CCCA into the ICZM Process  240 The Three Phases of ICZM Law Development  339 The Elements of CCCA Law  341

List of Abbreviations AR4 AR5 Barbados CZMA Belize CZMA BOBLME CBD CC&CRMA CCA CCCA CDA CDS CMAs CMP CMZ 2008 CO2 CRZ CRZ 1991 CRZ 2011 CVCAs CZ&CRMP CZM CZMA CZMP CZMS CZP EEZ EIA EPPA EU FAO GHGs HRM HTL HWM

IPCC Fourth Assessment Report IPCC Fifth Assessment Report Coastal Zone Management Act, 1998 Belize Coastal Zone Management Authority Bay of Bengal Large Marine Ecosystem Project United Nations Convention on Biological Diversity, 1992 Coast Conservation and Coastal Resource Management Act, 2011 Coast Conservation Act, 1981 Coastal Climate Change Adaptation Coast Development Authority Coastal Development Strategy, 2006 Coastal Management Areas Coastal Management Program Draft Coastal Management Zone Notification, 2008 Carbon dioxide Coastal Regulation Zone Coastal Regulation Zone Notification of 1991 Coastal Regulation Zone Notification of 2011 Critically Vulnerable Coastal Areas Coastal Zone and Coastal Resource Management Plan Coastal Zone Management Coastal Zone Management Act, 1972 Coastal Zone Management Programs/Coastal Zone Management Plan Coastal Zone Management Subgroup Coastal Zone Policy 2005 Exclusive Economic Zone Environmental Impact Assessment Environmental Protection and Preservation Act of Maldives, 1993 European Union Food and Agriculture Organization of the United Nations Greenhouse Gases Halifax Regional Municipality High-tide Line High Water Mark

xviii ICM ICM Act

list of abbreviations

Integrated Coastal Management National Environmental Management: Integrated Coastal Management Act, 2008 ICOM Integrated Coastal and Ocean Management ICZM Integrated Coastal Zone Management ICZMP Integrated Coastal Zone Management Plan IMCAM Integrated Marine and Coastal Area Management IPCC Intergovernmental Panel on Climate Change LME Large Marine Ecosystem LOMAs Large Ocean Management Areas LOSC United Nations Convention on the Law of the Sea, 1982 LTL Low-tide Line MAF Million Acre Feet MAP Phase II Action Plan for the Protection of the Marine Environment and the Sustainable Development of the Coastal Areas of the Mediterranean MARPOL International Convention for the Prevention of Pollution from Ships, 1973 MoEF Ministry of Environment and Forests MoWR Ministry of Water Resources MPAs Marine Protected Areas MSP Marine Spatial Planning NAPA National Adaptation Programmes of Action NCZMA National CZM Authority NOAA National Oceanic and Atmospheric Administration RCP Representative Concentration Pathways RMA Resource Management Act, 1991 SAARC South Asian Association for Regional Cooperation SACEP South Asia Co-operative Environment Programme SASAP South Asian Seas Action Plan SCD Sustainable Coastal Development SIDS Small Island Developing States Sindh CDAA Sindh Coastal Development Authority Act, 1994 SLR Sea Level Rise SWOT Strengths, Weaknesses, Opportunities and Threats TCCA Texas Coastal Coordination Act, 1991 TCMP Texas Coastal Management Program TCPLMA Coastal Public Lands Management Act, 1973 UNCCD United Nations Convention to Combat Desertification

list of abbreviations

UNCED United Nations Conference on Environment and Development UNDP United Nations Development Programme UNEP United Nations Environment Programme UNFCCC United Nations Framework Convention on Climate Change UNHCR Office of the United Nations High Commissioner for Refugees

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Introduction 1.1 Background The sea, which had been beating against the shores, suddenly broke the boundary that was imposed on it by nature [and] rushed into the city. It coursed through the streets of the beautiful city, [covering] up everything . . . Even as they were all looking, Arjuna saw the beautiful buildings becoming submerged one by one. Arjuna took a last look at the mansion of Krishna. It was soon covered by the sea. In a matter of a few moments it was all over. The sea had now become as placid as a lake. There was no trace of the beautiful city, which had been the favourite haunt of all the Pandavas. Dwaraka was just a name; just a memory.1 The Mahabharata

This poignant passage from an ancient Hindu text is one of the earliest accounts of an entire city in the Indian subcontinent—the Dwaraka of Lord Krishna—being inundated by rising seas.2 Similar tales abound in other civilizations, including the biblical deluge3 and the epic of Gilgamesh.4 Akin to this swallowing of the Dwaraka by the sea, cataclysmic floods, tsunamis and earthquakes have destroyed cities and towns throughout recorded and prerecorded history. Examples include the fabled continent of Atlantis,5 parts of Queen Cleopatra’s royal quarters off coastal Alexandria,6 the seven pagodas at 1 Bhaktivejanyana Swami, Ithihaasa: The Mystery of His Story is My Story of History (Bloomington: AuthorHouse, 2013) at 148. 2 T.S. Subramanian, “Significant finds at Dwaraka”, The Hindu [of India] (23 February 2007) online: The Hindu ; see also Matsya Mahapurana: An Exhaustive Introduction, 1st ed., K.L. Joshi, ed., translated by Board of Scholars, Parimal Sanskrit Series, No. 93 (New Delhi: Parimal Publishers, 2007) at 15–40, ver. 2.10. 3 See The King James Version of the Holy Bible, Genesis, ver. 6:5–8:21. 4 The Epic of Gilgamesh (Assyrian International News Agency, Books Online, [nd]) chap 5 at 20, online: AINA, Books, The Epic of Gilgamesh . 5 “Has the real lost city of Atlantis finally been found . . . buried under mud flats in Spain?”, MailOnline (15 March 2011) online: MailOnline . 6 “Sunken treasure—divers recover the stunning artefacts of Cleopatra’s palace”, Mail Online (26 May 2010) online: MailOnline .

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004282209_�02

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Mahabalipuram,7 and the port cities of Muziris,8 Pavlopetri,9 Dunwich10 and Port Royal.11 A variety of reasons have been offered for the destruction of these places, ranging from the wickedness of the inhabitants, to retribution spells and curses. These losses have been largely localised and sporadic, having taken place at different times in human history. Today, with global warming and sea level rise (SLR), we have an impending disaster looming over our heads like the proverbial sword of Damocles. A growing body of scientific evidence confirms that the earth’s climate is rapidly changing.12 In fact, climate change, and in particular its impacts on coastal regions, is fast becoming the biggest challenge ever to confront mankind.13 In recent history, the Indian Ocean tsunami of 2004, which was one of the worst natural disasters ever to strike the area, brought the coastal communities of South Asia face-to-face with the destructive power of the sea. On 26 December 2004, a massive underwater earthquake measuring 9.3 on the Richter scale, with its epicenter off the western coast of northern Sumatra, triggered a tsunami. Within hours, the wave was cutting a deadly path across two continents, killing nearly 300,000 people.14 The worst affected countries were Indonesia, Sri Lanka, India, the Maldives and Thailand. Entire coastal communities were wiped out, and in certain places the waves reached three kilometers inland.15 Over 1.7 million were displaced, and economic losses

7 8 9 10 11 12

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T.S. Subramanian, “The secret of the Seven Pagodas”, Frontline [of India] 22:10 (20 May 2005) online: Frontline, Archive Search . Pankaja Srinivasan, “In search of Muziris”, The Hindu [of India] (8 August 2012) online: The Hindu . See generally The Pavlopetri Underwater Archaeology Project, online: UK Campus . “Underwater city could be revealed”, BBC News (14 January 2008) online: BBC News . The Underwater City of Port Royal: Description, online: UNESCO . The IPCC concludes that “[w]arming of the climate system is unequivocal.” Core Writing Team, Rajendra K. Pachauri & Andy Reisinger, eds, Climate Change 2007: Synthesis Report (Geneva: Intergovernmental Panel on Climate Change, 2008) at 30. “We underline that climate change is one of the greatest challenges of our time”. See UNFCCC, Draft decision -/CP.15: Proposal by the President: Copenhagen Accord, FCCC/ CP/2009/L.7 (18 December 2009) ¶1. See generally Hope Lewis, “Human Rights and Natural Disaster the Indian Ocean Tsunami” (2006) 33 Hum Rts 12 (HeinOnline). Prema-chandra Athukorala, “Disaster, Generosity and Recovery: Indian Ocean Tsunami”, Working Paper No. 2012/04 (Canberra: Working Papers in Trade and Development, Australian National University, 2012) at 5.

Introduction

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exceeded USD10 billion.16 In South Asia, the tsunami primarily hit Sri Lanka, India and the Maldives. Sri Lanka suffered damage to nearly two-thirds of its coastline, lost 35,322 lives, and was left with 853,025 displaced persons.17 The total loss in assets was about USD1 billion or nearly five per cent of its gross domestic product (GDP).18 In India, the southeastern coastline bore the brunt of the damage, which left nearly 12,500 dead and 647,600 displaced.19 In the Maldives, the main damage was to water sources and infrastructure, setting the struggling developing country back by several decades. Even though the Indian Ocean tsunami is not per se related to climate change and SLR, the consequent response by the affected countries in the South Asian region is a stark and vivid example of how unorganised nations in this region are in dealing with the impacts of mass disasters in coastal areas, in this case climate change and SLR. Even after the enactment of new responsive mechanisms, it is doubtful whether these countries are still able to respond to emerging challenges.20 In fact, a few years later, in 2007, Super Cyclone Sidr swept across the southwest coast of Bangladesh, leaving 3,406 people dead and close to nine million people affected.21 The cyclone first struck the Sundarban mangrove forests, a fortunate happenstance, which considerably reduced the storm’s intensity before it reached the populated areas.22 A year later, Cyclone Nargis hit Irrawaddy Delta and southern Yangon in Myanmar, leaving 140,000 people dead and 2.4 million severely affected.23 The increasing frequency and ferocity of disasters and extreme weather events point to something out of order in the natural regulation of the earth’s

16

John Telford, John Cosgrave & Rachel Houghton, Tsunami Evaluation Coalition: Joint Evaluation of the International Response to the Indian Ocean Tsunami: Synthesis Report (London: Tsunami Evaluation Coalition, 2006) at 16–17. 17 International Federation of Red Cross and Red Crescent Societies, Legal Issues from the International Response to the Tsunami in Sri Lanka: An International Disaster Response Laws, Rules and Principles (IDRL) Programme Case Study (2006) at 4. 18 Shamalie Gunawardana, “Legal and Governance Issues of the Tsunami Disaster—The Sri Lankan Experience” in C. Raj Kumar & D.K. Srivastava, eds, Tsunami and Disaster Management: Law and Governance (Hong Kong: Sweet & Maxwell Asia, 2006) 227 at 228. 19 Tiding over Tsunami—Part 1 (Tamil Nadu: India, 2005) at 14. 20 See UNISDR, Press Release, UNISDR 2009/24, “Five years after the Indian Ocean Tsunami—are we better prepared and more resilient to disasters?” (24 December 2009). 21 Bangladesh, Cyclone Sidr in Bangladesh Damage, Loss, and Needs Assessment for Disaster Recovery and Reconstruction (Bangladesh: Economic Relations Division, 2008) at 4. 22 Ibid. at 5. 23 “FACTBOX-Key facts about Cyclone Nargis, Reuters” (30 April 2009) online: REUTERS .

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climate.24 All these events have brought the issue of climate change out of science journals and movies into the realm of public consciousness and debate.25 There is now overwhelming and demonstrable scientific evidence that supports the conclusion that the earth is warming at alarming and unprecedented levels. As the IPCC Fifth Assessment Report (AR5) notes, “[w]arming of the climate system is unequivocal . . . The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, sea level has risen . . .”26 These phenomena cannot be accounted for by natural climate variability alone, as human activity, particularly the burning of fossil fuels and deforestation processes, appear to be the main contributing factors. The United Nations Framework Convention on Climate Change 199227 (UNFCCC) also recognizes human contribution to this phenomenon, defining climate change as a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.28 This book examines the effects of SLR and climate change on coastal areas, ecosystems and communities. It analyzes the central role that law can play in supporting integrated coastal zone management (ICZM) and in drawing linkages with coastal climate change adaptation (CCCA). It examines how laws can respond to the multi-dimensional problems confronting degraded coastlines and to climate change-related impacts, thereby moving us towards sustainable coastal development (SCD).29 In this regard, a South Asian coastal context is employed to demonstrate the importance of law in supporting ICZM. 24

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27 28 29

See Casey P. Kaplan, “The Act of God Defense: Why Hurricane Katrina & Noah’s Flood Don’t Qualify” (2007) 26 Rev Litig 155 at 156 (QL); see also Staff Reporter, “Climate changetriggered high sea level led to more damage in Japan: Pachauri”, The Hindu [of India] (23 March 2011) online: The Hindu . Waterworld, 1995, DVD: (New York: Universal Pictures, 1995). The Day After Tomorrow, 2004, DVD: (Santa Monica: California, Lions Gate Films, 2004). An Inconvenient Truth, 2006, DVD: (LA: California, Paramount Pictures, 2006). “Summary for Policymakers” in Working Group I Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Climate Change 2013: The Physical Science Basis, at SPM-3, online: IPCC . United Nations Conference on Environment and Development: Framework Convention on Climate Change, 19 June 1993, 31 ILM 849 (adopted at New York on 9 May 1992) [UNFCCC]. Ibid., art. 1.2. See generally Biliana Cicin-Sain, “Sustainable Development and Integrated Coastal Management” (1993) 21 Ocean & Coast Mgmt 11.

Introduction

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Coastal South Asia30

As can be seen above, coastal South Asia is made up of five countries: India (which has the largest coastline in South Asia), Pakistan, Bangladesh, the Maldives, and Sri Lanka. While India, Pakistan and Bangladesh are situated on the Asian mainland and almost encircle the northern portion of the Arabian Sea and the Bay of Bengal, the Sea and the Bay are separated by the downward-protruding, triangular-shaped Deccan plateau which establishes 30

Created by Jennifer Strang, GIS Analyst, Dalhousie University, with inputs from the author.

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India’s coastline.31 The Maldives and Sri Lanka are island nations in the Indian Ocean and are situated close to the Indian mainland. 1.2

Nature and Scope

Coasts represent transitional zones where the land meets the sea and where the landward side is, in large part, determined by the influence exerted by the ocean and vice versa.32 Due to this land-sea interface, and the moon’s gravitational pull, which leads to oscillation of coastal oceanic waters (the tides), the coastal zone represents a complex and dynamic ecosystem. It encompasses some of the world’s most unique biodiversity and economic resources, and includes estuaries, wetlands, mangroves, salt marshes, lagoons, deltas, coral reefs, aquifers and sea grass beds.33 The largest human populations are also found in coastal regions,34 as is a wide range of economic activities, most of 31

It can be argued that the Bay of Bengal and the Arabian Sea are semi-enclosed seas. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, 21 ILM 1261 (entered into force 1994), art. 122; Lewis M. Alexander, “Regionalism and the Law of the Sea: The Case of Semi-enclosed Seas” (1974) 2 Ocean Devel & Int’l L 151 at 157. Such a classification is pertinent as it requires states bordering an enclosed or semi-enclosed sea to co-operate in the exercise of their rights and the performance of their duties under the LOSC in line with article 123. Satya N. Nandan & Shabtai Rosenne, eds, United Nations Convention on the Law of the Sea 1982: A Commentary, vol. 3 (The Hague: Martinus Nijhoff, 1995) at 343–68. 32 International Law Association, Sofia Conference (2012): Baselines Under the International Law of the Sea, at 5, online: International Law Association [ILA, Sofia Conference]. 33 Charles T. O’Reilly, Donald L. Forbes & George S. Parkes, “Defining and Adapting to Coastal Hazards in Atlantic Canada: Facing the Challenge of Rising Sea Levels, Storm Surges, and Shoreline Erosion in a Changing Climate” in Aldo Chircop & Moira McConnell, eds, Ocean Yearbook, 19 (Chicago: The University of Chicago Press, 2005) 189 at 189. 34 UNEP, Global Environment Outlook GEO4 Environment for Development (UNEP, 2007) at 128 (noting that over 60 per cent of the global population lives within 100 kilometers of the coastline). See Richard J. Nicholls & Poh Poh Wong, “Coastal Systems and Low-Lying Areas” in M.L. Parry et al., eds, Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 315 at 345. It is estimated that even though coastal zones cover only 15 to 20 per cent of the earth’s total land surface, more than 50 per cent of the world’s population lives within 100 kilometers of the shoreline, a figure that is slated to rise to 75 per cent by 2020. Luitzen Bijlsma et al., eds, Preparing to Meet the Coastal Challenges of the 21st Century: Conference Report

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which cannot be replicated elsewhere.35 Indeed, coastal areas and resources play a critical role in the economies of virtually all nations that border the sea.36 People continue to gravitate from inland areas to coastal regions in search of improved living standards and economic opportunities,37 with the consequence that many rural coastal areas are being urbanized and small cities and towns are transforming into mega-coastal cities.38 In fact, coastal urbanisation

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36 37

38

World Coast Conference 1993 (The Netherlands: Ministry of Public Works and Water Management, April 1994) at 13. It is estimated that at the global level more than half the world’s population lives within 60 kilometers of the shoreline, and this could rise to three quarters by 2020. Nicholas A. Robinson, ed., Agenda 21 & The UNCED Proceedings, vol. 4, 3rd series, International Protection of the Environment (New York: Oceana Publications, Inc., 1993) at 307, ch. 17, ¶17.3; GESAMP (IMO/FAO/UNESCO-IOC/WMO/WHO/IAEA/ UN/UNEP Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection) & Advisory Committee on Protection of the Sea, A Sea of Troubles, Rep Stud GESAMP No. 70 (2001) at 19. Nearly three billion humans, more than half of the world’s population lives within 60 kilometers of the shoreline. Robert F. Blomquist, “Virtual Borders? Some Legal-Geo-Philosophical Musings on Three Globally Significant Fragile Ecosystems under United Nations Agenda 21” (1997) 45 Clev St L Rev 23 at 28 (QL). The estimates vary because there is no uniform criterion to determine the ‘coastal zone’ in exact terms. Coastal and ocean activities contribute more than one trillion dollars to America’s GDP. US, Department of State, U.S. Climate Action Report 2010 (Washington: Global Publishing Services, 2010) at 90; Washington Ochola, “The Future Today” in UNEP, Africa Environment Outlook 2: Our Environment, Our Wealth (Nairobi: UNEP, 2006) 412 at 471. J. Dronkers et al., eds, Report of the Coastal Management Subgroup: Strategies for Adaption to Sea Level Rise (Geneva: IPCC, Response Strategies Working Group, 1990) at 1. For instance, see José R. Dadon & Silvia D. Matteucci, “Coastal Zone Management in Buenos Aires, Argentina” in Aldo Chircop, Scott Coffen-Smout & Moira McConnell, eds, Ocean Yearbook, vol. 23 (Leiden: Martinus Nijhoff Publishers, 2009) 361; see also Turkey, Ministry of Environment & Forestry, First National Communication of Turkey on Climate Change Under the United Nations Framework Convention on Climate Change (Ankara: Ministry of Environment & Forestry, 2007) at 167. Chua Thia-Eng, The Dynamics of Integrated Coastal Management: Practical Applications in the Sustainable Coastal Development in East Asia (Quezon City: GEF/UNDP/IMO Regional Programme for the Prevention and Management of Marine Pollution in the East Asian Seas, 2006) at 20. Rapid urbanization will lead to more coastal cities becoming megacities containing 10 million or more people. Already, 13 of the world’s 20 megacities are coastal and nearly 700 million people live in low lying coastal areas that are less than 10 meters above sea level. IOC/UNESCO et al., A Blueprint for Ocean and Coastal Sustainability (Paris: IOC/UNESCO, 2011) at 9; see also UN Habitat, State of the World’s Cities 2008/2009: Harmonious Cities (Sterling: Earthscan, 2008) at xv (at the global level, nearly 60 per cent of the world’s population which live in low-elevation coastal zones are urban). See also World Commission on Environment & Development, Our Common Future (Oxford:

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has become one of the most critical issues facing the planet. Due to this massive human presence, there is a proliferation of construction and built-up area along the water’s edge. Industries, power plants and transportation corridors are entrenched on the coastal fringes, spewing dangerous chemicals and heavy metals, and facilitating the introduction of invasive species into coastal waters.39 The increasing urbanization of coastal areas and the subsequent demand for more amenities engenders a series of environmental and natural resource management problems, such as squatter settlements, overcrowded makeshift housing,40 lack of potable water,41 improper sanitation facilities,42

39

40

41

42

Oxford University Press, 1987) at 255. More than 60 per cent of the global population lives within 100 kilometers of the coastline, and 21 of the world’s 33 mega-cities are located in the coastal zones of developing countries. UNEP, Global Environment Outlook GEO4 Environment for Development (UNEP, 2007) at 346. See generally Tony George Puthucherril, “Ballast Waters and Aquatic Invasive Species: A Model for India” (2008) 19 Colo J Int’l Envtl L & Pol’y 381. The increasing volumes of trade and shipping helps in the spread of invasive species. IUCN, “Intentional introductions” Marine Menace: Alien Invasive Species in the Marine Environment (Switzerland: IUCN, 2009) at 11. Fish in the Persian Gulf contain as much as 3.9 parts per million (dry weight) of methyl mercury while dolphins in the Mediterranean have more than 2,200 parts per million of mercury and 770 of selenium. These levels are 1,500 times higher than what is safe for human consumption. Oceana, Oceans in Danger (June 2004) online: Oceana . Coastal Mumbai is the seventh largest city in the world with the fifth fastest rate of population growth. However, over half its population lives in abject poverty, crammed into over-crowded slums and hutments located in unhealthy marginal environments. Greg O’Hare, Dina Abbott & Michael Barke, “A Review of Slum Housing Policies in Mumbai” (1998) 15:4 Cities 269–83 (ScienceDirect). In the coastal cities of Chennai in India, Shanghai, and Tianjin in China, excessive groundwater abstraction is resulting in falling water tables, water quality degradation and land subsidence. World Water Assessment Programme, Managing Water under Uncertainty and Risk, vol. 1, The United Nations World Water Development Report 4 (Paris: UNESCO, 2012) at 66, 94. The number one factor contributing to the pollution of major river systems and the Manila Bay in the Philippines are the shanties and other unauthorized structures that do not have septic tanks. Metropolitan Manila v Concerned Residents of Manila Bay, represented and joined by Divina v Ilas, (2008), GR Nos. 171947–48 (Phil SC), online: Supreme Court of the Philippines, Jurisprudence, December 18, 2008, GR No. 171947–48 .

Introduction

9

unscientific garbage disposal, untreated sewage,43 and diseases.44 In addition to these problems, the resilience of coastal ecosystems habitat is further reduced45 by uncontrolled felling of mangroves,46 extraction of beach sand,47 filling, draining and conversion of wetlands for agriculture, aquaculture and infrastructural projects,48 coral mining,49 and upstream diversion of waters 43

See C. Nellemann, S. Hain & J. Alder, eds, In Dead Water: Merging of Climate Change with Pollution, Over-harvest, and Infestations in the World’s Fishing Grounds (Arendal: UNEP GRID-Arendal, 2008) at 42; see generally UNEP, Marine Litter: A Global Challenge (UNEP: Nairobi, 2009); see also Mary Schumacher & Porter Hoagland, “The Protocol Concerning Pollution from Land-Based Sources and Activities in the Wider Caribbean Region: A Breakthrough for the Caribbean, But How Closely Should Others Follow Their Lead?” in Elisabeth Mann Borgese, Aldo Chircop & Moria McConnell, eds, Ocean Yearbook, vol. 16 (Chicago: University of Chicago Press, 2002) 496 at 504–5 (explaining the impacts of coastal sewage discharge). 44 People living in small island developing states, coastal and Polar Regions are particularly vulnerable. World Health Organization, Protecting Health from Climate Change: World Health Day 2008 (Geneva: WHO Press, 2008) at 14. SLR and higher temperatures will lead to the resurgence of malaria and mosquito-borne diseases like dengue fever. Robin Kundis Craig, “A Public Health Perspective on Sea-Level Rise: Starting Points for Climate Change Adaptation” (2010) 15 Widener L Rev 521 at 531(QL). 45 Estuaries are the hardest hit among the various habitats. Tom Garrison, Oceanography: An Invitation to Marine Science, 4th ed (California: Brooks/Cole Thomson Learning, 2002) at 479. India lost half of its mangrove forests between 1963 and 1977. Ibid. at 480; see also US Commission on Ocean Policy, An Ocean Blueprint for the 21st Century: Final Report (Washington, DC, 2004) at 170 (since the arrival of the early settlers, US has lost nearly 110 million acres of its wetlands). 46 FAO, The World’s Mangroves 1980–2005, FAO Forestry Paper 153 (Rome: FAO, 2007) at 18. 47 L.K. Sekhar & S.K. Jayadev, “Karimanal (Mineral Beach-Sand) Mining in the Alappuzha Coast of Kerala—A People’s Perspective” (Paper delivered at the Third International Conference on Environment and Health organized by the Department of Geography, University of Madras and Faculty of Environmental Studies, York University, India (15 December 2003) [unpublished]. 48 Royal C. Gardner, “Rehabilitating Nature: A Comparative Review of Legal Mechanisms That Encourage Wetland Restoration Efforts” (2003) 52 Cath U L Rev 573 at 574. 49 Among the different local pressures, overfishing, including destructive fishing is the most pervasive immediate threat, that affects more than 55 per cent of the world’s reefs. This is followed by coastal development and watershed-based pollution, each threatening about 25 per cent of reefs. Marine-based pollution and damage from ships threaten 10 per cent of reefs. Lauretta Bruke et al., Reefs at Risk Revisited (Washington, DC: World Resources Institute, 2011) at 3; see also Coral Reef Mining, Harvesting and Trade: Undermining the Future Value of Coral Reefs?, online: Coral Reef Alliance .

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(which impairs freshwater flows into estuaries and diminishes the quantity of river-borne sediments into coastal deltas).50 The growing number of dead zones near coastal waters, eutrophication and algal blooms are symptomatic of the ills that currently plague coastal zones.51 It also goes without saying that coastal ecological systems provide a myriad of services to human societies, more importantly, free ecological services like storm surge protection, filtration of effluents, etc. Too often, without realising the importance of these services, these systems are destroyed. Subsequently, the functions they provide are sought to be replicated through expensive technological interventions that do not always provide them with the same efficiency as those provided by the destroyed natural systems which were in harmony with the surrounding ecology. In addition to the above-listed problems, over-fishing is depleting fishery stocks in many coastal waters.52 This is having a profoundly negative effect on the economies of several traditional coastal communities, particularly in developing countries, as they are heavily dependent on artisanal fishing, subsistence farming, traditional aquaculture, and gathering produce from coastal forests.53 Due in large part to globalization and the implementation of neoliberal market-based development policies in certain coastal regions, coastal communities are increasingly being boxed into small parcels as their lands and common property resources are appropriated for developmental projects 50

51 52

53

Commission on Dams, Dams and Development A New Framework for Decision-Making (London: Earthscan Publications Ltd, 2000) at 81. Damming and withdrawal causes salinization of estuarine land. In Bangladesh, the livelihoods and nutrition requirements of up to 30 million people have been affected because of stream-flow modifications. Reduced sediment discharge to coastal areas is increasing the vulnerability of low-lying coastal communities to inundation. UNEP, Global Environment Outlook: Geo4 Environment for Development (Malta: UNEP, 2007) at 130. The number of dead zones increased from 149 in 2003 to over 200 in 2006. Nellemann, Hain & Alder, eds, supra note 43 at 9. In 2008, nearly 45 million people were directly engaged in capture fisheries or aquaculture and at least 12 per cent were women. This number represents a 167 per cent increase compared to the 16.7 million people engaged in 1980. UNGA, Oceans and the Law of the Sea: Report of the Secretary-General, Addendum, 66th Sess, A/66/70/Add.2 (2011) at 33. See generally J. Campbell, E. Whittingham & P. Townsley, “Responding to Coastal Poverty: Should we be Doing Things Differently or Doing Different Things?” in Chu Thai Hoanh et al. eds, Environment and Livelihoods in Tropical Coastal Zones: Managing Agriculture– Fishery–Aquaculture Conflicts (Oxon: CAB International, 2006) 274 (providing an overview of the impact of poverty on coastal communities and utilizes the sustainable livelihoods approach to reduce coastal poverty).

Introduction

11

and special economic zones.54 Poverty aggravates the problem of coastal resources depletion as these impoverished communities rely increasingly on deleterious methods for resource extraction, like cyanide and dynamite fishing,55 destructive fishing gear,56 and clearing mangrove forests for wood.57 In turn, these practices further deplete the resource base58 and often lead to conflicts between stakeholders. With coastal populations expected to double or even triple in the coming decades, development and claims to resources are expected to intensify, placing unprecedented pressures on coastal areas and resources.59 In short, coastal and marine ecosystems are in a precarious state and the coastline is under siege by a multitude of threats.60 Nevertheless, all of these challenges pale in comparison to accelerated SLR and other climate change impacts. Given the overall degraded state of the coastlines, even slight climatic disruptions, such as increased frequency and intensity of storms, will magnify the rate of degradation and produce far-reaching and catastrophic consequences.61 While these stressors and climate change impacts are by themselves capable of inflicting heavy damage on coastlines, their convergence 54

55

56

57

58 59 60

61

Nowhere is the phenomenon more at play than on the Indian coastline. See Sandip Roy, “SEZs: The war on India’s coast” Firstpost (28 November 2011) online: Firstpost . In the guise of establishing special economic zones, coastal lands are being appropriated by large business houses often with state connivance. Ibid.; see also Anupam Chakravartty, Gujarat High Court halts work at Mundra SEZ”, Down to Earth (9 May 2012) online: Down to Earth . Sue Wells, “Dynamite Fishing in Northern Tanzania—Pervasive, Problematic and yet Preventable” (2009) 58 Mar Pollution Bull 20 (ScienceDirect) (despite a ban since 1970s in Tanzania, this practice still continues). FAO & UNEP, Report of the FAO/UNEP Expert Meeting on Impacts of Destructive Fishing Practices, Unsustainable Fishing, and Illegal, Unreported and Unregulated (IUU) Fishing on Marine Biodiversity and Habitats, Rome, 23–25 September 2009, FAO Fisheries and Aquaculture Report No. 932, FIRF/R932 (En) (Rome: FAO, 2010) at 7. James Tobey & Elin Torell, “Coastal Poverty and MPA Management in Mainland Tanzania and Zanzibar” (2006) 49 Ocean & Coast Mgmt 834 (ScienceDirect) (emphasizing that poverty makes it more difficult to realize conservation goals). Campbell, Whittingham & Townsley, supra note 53. See generally Liz Creel, “Ripple Effects: Population and Coastal Regions” in Making the Link (Washington, DC: Population Reference Bureau, September 2003). Tricia A. Sherick, “A Comparison of the Coastal Zone Management Policies of the Atlantic and Pacific Coastal Regions Versus Programs Implemented in Selected Great Lakes States: The Case for Greater Application of the Public Trust Doctrine in Great Lakes States Coastal Management Policy”, Comment, (1997) 28:2 U Tol L Rev 459 at 459 (HeinOnline). See generally Nellemann, Hain & Alder, eds, supra note 43.

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exponentially worsens the situation, leading to extreme reduction in coastal estate, destruction of ecosystems, and a tearing of the social fabric. These general observations about the state of coastal zones in most parts of the world also apply to coastal South Asia, where population growth and waterfront expansion have led to increased coastal urbanisation and its attendant problems, including marine and coastal pollution.62 The coastal countries of South Asia are endowed with unique natural resources. This diversity in coastal and marine biodiversity places a concomitantly heavy responsibility on these countries for effective management of their resources. However, amidst the growing clamor for greater economic growth and eradication of poverty, responsible and sustainable management is all but forgotten.63 As a result, intense economic development and continuing unrestrained population growth have engendered several environmental problems and predicaments that now besiege this region. As well, the vast majority of coastal communities in South Asia are situated in low-lying areas such as flood plains and the banks of estuarine environments. Hence, the exposure to extreme weather events and coastal hazards will be devastating.64 In many ways, coastal development in South Asia is a classic example of the age-old human vs. nature conflict. Against this backdrop, the observations by the Coastal Zone Management Subgroup of the Intergovernmental Panel on Climate Change, made in 1991 in a more general context, are relevant for coastal South Asia, despite 23 years of half-hearted action by the concerned states. In many parts of the world, the natural systems that provide protection against the sea are being degraded by development activities through mining for sand and coral, cutting mangroves, damming and confining the flow of rivers, and filling wetlands. Every year that countries postpone addressing these issues, they continue to increase their vulnerability to 62

63 64

Heavily populated South Asian coastal cities play a central role in supporting national economies. As has been observed, the “[c]oastal cities in South Asia are at the frontline of . . . climatic changes.” Moika Barthwal-Dutta, Understanding Security Practices in South Asia: Securitization Theory and the Role of Non-State Actors, Asian Security Studies (New York: Routledge, 2012) at 123. For more details on the dilemma (economic growth v environmental protection) faced by coastal countries in South Asia, see ch. 3. Approximately 360 million urban residents live in coastal areas less than 10 meters above sea level and are vulnerable to flooding and storm surges. Fifteen of the world’s 20 megacities are at risk from rising sea levels and coastal surges. The World Bank, Cities and Climate Change: An Urgent Agenda, 10 Urban Development Series Knowledge Papers (Washington DC: The World Bank, 2010) at 8.

Introduction

13

climate change and associated sea level rise . . . Thus, even though the effects of accelerating sea level rise are still decades away, NOW is the time to take action.65 Without a doubt, there is an urgent need to find practical means to resolve conflicting uses and interests in the coastal zones. In this search, ICZM emerges as the central tool that can be utilised for managing coastal areas and resources while stimulating and sustaining economic development.66 In fact, with an increasing understanding and recognition of the economic and environmental contributions that coastal regions make to overall national development, the coastal countries of South Asia (as elsewhere) with diverse geographic, economic and political environments are devoting resources to develop planning and management initiatives for coastal and marine areas via ICZM.67 However, there is a mismatch between the scale of problems that confronts the coastal areas and the management, legal and policy tools that are being developed and the resources being devoted to their development as plausible solutions of choice. ICZM is conceived as a primary management and planning response that aims to prevent degradation of coastal areas by addressing coastal management issues in an integrated fashion.68 It seeks to accomplish this by integrating actions and actors on a wide range of fronts to minimize conflicts and maximise the benefits that can be secured through this nuanced approach to coastal management. In fact, ICZM seeks to overcome fragmentation inherent in sectoral approaches to coastal governance and the jurisdictional overlap between different tiers of government and multiple management systems.69 Rather than displacing sectoral management, the emphasis is to draw appropriate linkages between the various sectoral efforts to produce a more holistic response for coastal zone management (CZM). It also seeks to transform topdown bureaucratic models of coastal governance into actions that are more bottom-up, participatory, equitable, inclusive, transparent and accountable.70 In doing so, it aims to reduce the vulnerability of coastal areas to natural hazards, climate change and SLR, and to sustain essential ecological processes, 65 66 67

Bijlsma et al., eds, supra note 34 at 9. For a more detailed explanation on the utility of ICZM to attain SCD, see ch. 5. For a more detailed explanation of the problems faced by coastal South Asia, see Chs. 2 & 3. 68 For further analysis of this concept, see ch. 5. 69 See ibid. 70 Ibid.

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life support systems and biological diversity.71 In sum, it is an operational tool that seeks to achieve SCD.72 Presently, ICZM has wide recognition as an important adaptive methodology that can be utilized to deal with some of the challenges posed by SLR and other climate change impacts on coastal zones.73 In the context of Asia’s lowlying highly populated coastal areas, the Intergovernmental Panel on Climate Change, in the Fourth Assessment Report, specifically points out: ICZM provides an effective coastal protection strategy to maximize the benefits provided by the coastal zone and to minimize the conflicts and harmful effects of activities on social, cultural and environmental resources to promote sustainable management of coastal zones . . . The ICZM concept is being embraced as a central organizing concept in the management of fisheries, coral reefs, pollution, megacities and individual coastal systems in China, India, Indonesia, Japan, Korea, the Philippines, Sri Lanka, Vietnam and Kuwait. It has been successfully applied for prevention and control of marine pollution in Batangas Bay of the Philippines and Xiamen of China over the past few years . . . The ICZM concept and principle could potentially promote sustainable coastal area protection and management in other countries of Asia.74 In terms of terminology, a wide array of terms is used to describe this practice.75 The most popular are ‘integrated coastal zone management,’ ‘integrated 71

72 73 74

75

Biliana Cicin-Sain & Robert W. Knecht, Integrated Coastal and Ocean Management: Concepts and Practices (Washington DC: Island Press, 1998) at 39 [Cicin-Sain & Knecht, Integrated Coastal]. The ultimate goal of integrated coastal management (ICM) is to improve the quality of life of coastal inhabitants by achieving sustainable development objectives. Chua Thia-Eng, Danilo Bonga & Nancy Bermas-Atrigenio, “Dynamics of Integrated Coastal Management: PEMSEA’s Experience” (2006) 34 Coastal Mgmt 303 at 303. ICZM is increasingly being “recognised and promoted as the most appropriate process” to deal with climate change impacts and SLR. Nicholls & Wong, supra note 34 at 340. Cicin-Sain & Knecht, Integrated Coastal, ibid. at 40. UNFCCC, supra note 27, art. 4(1)(e). Rex Victor Cruz et al., “Asia” in M.L. Parry et al., eds, Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 469 at 491. These range from terms like ‘coastal zone management’, ‘coastal area management’, ‘shore management’, ‘coastal resources management’, ‘sea-use planning’, ‘coastal management’,

Introduction

15

coastal and ocean management’ (ICOM),76 and ‘integrated coastal management’ (ICM).77 The Convention on Biological Diversity, 1992, introduces another variant, namely, ‘integrated marine and coastal area management (IMCAM).78 Though all these concepts are similar in objective, dissimilarity can arise in terms of approach and application.79 In this book, the term ICZM is utilised throughout, primarily because ‘coastal zone’ implies a high degree of definiteness with regard to the spatial extent that is the subject of integrated management.80 Secondly, the emphasis on the term ‘integrated’ in ICZM distinguishes it from sectoral CZM efforts. ICZM has been on the international agenda for nearly four decades, and the number of national projects and programs has increased substantially.81 However, at the international level, ICZM remains entrenched in a series of soft ‘cross-sectoral integrated coastal area planning’, ‘community-based coastal resource man­ agement’, ‘coastal resource management’, ‘coastal resources co-management’, ‘integrated coastal zone management’, ‘coastal area management’, and ‘coastal planning’. 76 Integrated coastal and ocean management (ICOM) has wider geographical connotations, as it places greater emphasis on the ocean side of the land-sea interface. However, in practice, both approaches overlap and are extensions of the same process of integration. See generally Aldo Chircop & Ryan O’Leary, “Legal Frameworks for Integrated Coastal and Ocean Management in Canada and the European Union: Some Insights from Comparative Analysis” (2012) 13:3 Vt J Envtl L 425 (HeinOnline). 77 Evelyne Meltzer, ed., International Review of Integrated Coastal Zone Management: Potential Application to the East and West Coasts of Canada, Oceans Conservation Report Series (Ottawa: Department of Fisheries and Oceans, 1998) at 8. 78 See AIDEnvironment, National Institute for Coastal and Marine Management/ Rijksinstituut voor Kust en Zee (RIKZ), Coastal Zone Management Centre, Integrated Marine and Coastal Area Management (IMCAM) Approaches for Implementing the Convention on Biological Diversity, CBD Technical Series No. 14 (Montreal: Secretariat of the Convention on Biological Diversity, 2004) at 3. 79 Cicin-Sain & Knecht, Integrated Coastal, supra note 71 at 11. 80 As well, it must be mentioned that at a five-day workshop organized in Charleston, USA, in 1989, which brought together 28 participants from 13 different countries to review the progress of ICZM, one of the major issues deliberated related to the appropriate term to describe this practice. After much consideration, it was decided that the best term was Integrated Coastal Zone Management, or ICZM. Jens Sorensen, “The International Proliferation of Integrated Coastal Zone Management Efforts” (1993) 21 Ocean & Coast Mgmt 45 at 48–49. 81 Jens Sorensen, “National and International Efforts at Integrated Coastal Management: Definitions, Achievements, and Lessons” (1997) 25:1 Coastal Mgmt 3 at 13 (tracing the history of the concept); see also Cicin-Sain & Knecht, Integrated Coastal, supra note 71 at 305–432 (describing ICZM practices in 22 selected countries).

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law instruments and documents.82 As mentioned earlier, ICZM has also been introduced into South Asia; however the efforts here have remained largely sub-optimal.83 Most coastal nations in this region and, particularly, those in other parts of the developing world, lack the capacity to translate many ICZMrelated postulates into action.84 Another major reason for the lack of success is that ICZM in South Asia has been presented primarily as pilot projects sponsored by international funding agencies.85 These pilots often have a very narrow mandate, are operational for short periods of time, and generally do not consider broader sustainability issues.86 82 83

84

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86

See generally Biliana Cicin-Sain, “Earth Summit Implementation: Progress Since Rio” (1996) 20:2 Mar Pol’y 123 (ScienceDirect). See generally Tony George Puthucherril, “Adapting to Climate Change and Accelerated Sea-Level Rise through Integrated Coastal Zone Management Laws: A Study of the South Asian Experience” in Aldo Chircop, Scott Coffen-Smout & Moira McConnell, eds, Ocean Yearbook, vol. 26 (Leiden: The Netherlands, 2012) 533 at 573 [Puthucherril, “Adapting to Climate Change”]. An ICM program must walk before it can run, and here the general limiting factor is the absence of institutional capacity. T-E Chua, “Introduction to the Special Issue on Lessons Learned in Integrated Coastal Management” (1997) 37:2 Ocean & Coast Mgmt 153 at 164; see also Biliana Cicin-Sain et al., “Education and Training in Integrated Coastal Management: Lessons from the International Arena” (2000) 43 Ocean & Coast Mgmt 291 at 293–94 (ScienceDirect). For instance, India began managing its coastlines since 1991. However, it was only recently that India began to move towards ICZM, which is being implemented via pilot projects sponsored by the World Bank. For more details, see The World Bank, Projects & Operations, online: The World Bank, Projects & Operations, Find a Project, Keyword “Integrated Coastal” [World Bank, Projects & Operations]. Way back in 1997, it was observed that, “[i]f integrated coastal management is to have a significant global impact on the condition of coastal ecosystems we must quickly scale up endeavors that are now largely conceived and implemented as a scattering of pilot projects”. Stephen Olsen, James Tobey & Meg Kerr, “A Common Framework for Learning from ICM Experience” (1997) 37:2 Ocean & Coast Mgmt 155 at 156 (ScienceDirect). Unfortunately, at least in coastal South Asia, ICZM is still being implemented primarily via projects. For more details, see Puthucherril, “Adapting to Climate Change”, supra note 83. Puthucherril, “Adapting to Climate Change”, ibid.; World Bank, Projects & Operations, ibid. For more details on the non-legislative approach to ICZM implementation as seen in Bangladesh, see also ch. 3. India is relying on a World Bank Project to implement ICZM. For more details see India, Ministry of Environment & Forests, Press Brief, “India, World Bank sign two loan agreements for Coastal Zone Management and Remediation of Polluted Sites” (22 July 2010) online: Ministry of Environment & Forests .

Introduction

17

As well, the legal moorings of ICZM are rarely addressed and, generally, there is a disconnect between the law and the implementation of the ICZM program, which in the long run hampers its effectiveness. The legal reality is that ICZM involves the application of laws and legal institutions at several levels.87 These aspects will need to be addressed in the design and implementation of an ICZM program.88 Indeed, despite an identified need for clear

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 The situation in other regions is more or less similar. Despite the availability of priming funds from the European Commission, the emphasis in Europe is also on “pilot” and “demonstration” methods, (project-based approach to ICZM) and this can hamper realization of long-term objectives. See generally Brian Shipman & Tim Stojanovic, “Facts, Fictions, and Failures of Integrated Coastal Zone Management in Europe” (2007) 35 Coastal Mgmt 375. For more details on the Coastal Resource Management Project in the Philippines, see Catherine A. Courtney & Alan T. White, “Integrated Coastal Management in the Philippines: Testing New Paradigms” (2000) 28 Coastal Mgmt 39. The object of the World Bank sponsored ICZM project in Morocco is to “pilot the application” of ICZM in the project area by building capacity of government institutions and local communities for ICZM, improve coastal resource management and livelihoods by taking recourse to a co-management approach and finally monitoring and evaluation. See generally World Bank, Project Appraisal Document on a Proposed Grant from the Global Environment Facility in the Amount of US$ 5.18 Million to the Kingdom of Morocco for an Integrated Coastal Zone Management Project, Report No. 66413-MA (Sustainable Development Department: Middle East and North Africa Region, June 13 2012). As can be seen, this project applies only to the project area and much will depend upon the country to take it forward even after funding stops. See generally Cormac Cullinan, Integrated Coastal Management Law: Establishing and Strengthening National Legal Frameworks for Integrated Coastal Management, FAO Legislative Study, No. 93 (Rome: FAO, 2006). In the context of overlapping jurisdiction between different agencies, the importance of a legislative basis for ICZM operation is highlighted. The authors point out: “[t]here are overlapping jurisdictions/functions among sectoral agencies over coastal areas and resources, which make the adoption of an integrated coastal resource management framework problematic. Furthermore, agencies are sometimes confused about their role in coastal resource management, which can in effect reduce their commitment to ICZM activities. In fact, . . . this is a primary factor that has thwarted ICZM efforts. Many cite the need for developing appropriate legislation to clarify jurisdictional and functional powers, as the first step towards any real solution. A legal framework is vital for legitimising policy objectives and establishing a structure for implementing policy initiatives related to ICZM.” Robin McCall & Talia Choy, “Integrated Coastal Zone Management (ICZM) in Guyana: Development Barriers, Opportunities and Recommendations” in Erlend Moksness, Einar Dahl & Josianne Støttrup, eds, Integrated Coastal Zone Management (Oxford: WileyBlackwell, 2009) 219 at 229–31.

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ICZM laws across South Asia, only a few pieces of legislation deal with coastal management, let alone address climate change. As will be seen in greater detail in subsequent chapters, most of the current laws do not require the decisionmaker to consider the potential impacts of climate change on proposed developments in vulnerable coastal areas. Therefore, planning activities continue to be organised in a sectoral way with hardly any scope for linkages.89 This fragmented approach contributes to the inefficient use of resources and conflicting claims among various stakeholders, ultimately culminating in missed opportunities and unsustainable development. Moreover, archaic laws and practices negatively affect the resilience and productivity of coastal ecosystems, rendering them vulnerable to threats posed by SLR. The foregoing highlights another important dimension of this inquiry, namely, the need for regional cooperation. It was to protect and manage the shared marine waters and associated coastal ecosystems that a regional seas program was established along with an action plan for the South Asian region in 1995. ICZM has been identified as one of the key areas of focus under this action plan. Recently, a coastal management center under the South Asian Association for Regional Cooperation (SAARC) that aims at capacity building for CZM has been established.90 Despite these efforts, regional cooperation exists only on paper and regional regime building in this direction is still in its infancy. South Asia is in fact one of the “least integrated” regions in the world, and there are several barriers that impede cooperation.91 Regional cooperation can be an influential platform to enrich countries by providing greater opportunities to devise solutions for common problems that affect a region.92 Cooperation can also shorten the gap between leading and lagging nations in terms of capacity and resources by promoting the build-up of epistemic

89 For an overview see, Puthucherril, “Adapting to Climate Change”, supra note 83. 90 SAARC, Area of Cooperation: Environment, online: SAARC . 91 Sadiq Ahmed & Ejaz Ghani, “South Asia’s Growth and Regional Integration: An Overview” in Sadiq Ahmed & Ejaz Ghani, eds, South Asia: Growth and Regional Integration (Washington DC: The International Bank for Reconstruction and Development/The World, 2007) 3 at 4. 92 For a more detailed analysis on the nature of regional cooperation in South Asia, see generally Ashok K. Behuria, ed., South Asia: The Quest For Regional Cooperation (New Delhi: Institute for Defence Studies and Analyses, 2009).

Introduction

19

communities, reducing vulnerabilities, and helping the poor to improve their economic capacities.93 In sum, a number of factors underscore the need for an overarching regional instrument in South Asia to reflect their peculiar coastal problems in the context of their political and socio-economic realities. These factors include: the gaps in the normative framework for coastal management at the national level in these countries; the lack of an all-encompassing international treaty on ICZM that sets out the specific rules of the practice; the strong possibility that the harmful consequences of climate change and SLR cannot be managed solely by individual countries; and the cross-border environmental impacts of developmental decisions of one country which can influence the coastal environments of other nations situated hundreds of miles away. The idea is that this regional instrument will offer normative guidance and support to national governments to effectively address complex coastal zone management, SLR, and other climate change related issues, and to act as the first step in a concerted effort to develop a more comprehensive regime on ICZM and CCCA in South Asia. This book seeks to contribute to this effort by explaining the role of law in promoting ICZM implementation in South Asia. The conceptual discussion focuses on the meaning of SCD and how ICZM can facilitate its attainment. It also considers how CCCA can be implemented via an ICZM process to undergird and enhance the prospect of SCD. The practical and instrumental application of this theoretical discussion first relates to the role that law and legislative frameworks play in promoting and facilitating the implementation of ICZM and CCCA in the context of their contribution to SCD with specific reference to how this can occur in the South Asian context. Second, it highlights the specific elements that can aid the development of a regional framework for ICZM implementation in South Asia, and considers how far a regional framework can strengthen ICZM implementation and promote CCCA for SCD in the different coastal countries of this region. Since ICZM is highly contextual, the analysis draws upon national and regional experiences from elsewhere to identify the specific elements that can inform a regional regime

93 See generally Aldo Chircop, David VanderZwaag & Peter Mushkat, “The Gulf of Maine Agreement and Action Plan: A Novel but Nascent Approach to Transboundary Marine Environmental Protection” (1995) 19:4 Mar Pol’y 317 (ScienceDirect); see also Lawrence P. Hildebrand & Aldo Chircop, “A Gulf United: Canada-U.S. Transboundary Marine Ecosystem-based Governance in the Gulf of Maine” (2010) 15 Ocean & Coastal LJ 339 (QL).

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at the South Asia level as a possible key step to galvanise national efforts which, inversely, can also contribute to the development of the regional regime. This highlighting of the virtues of law and legal frameworks in implementing ICZM to promote CCCA introduces a new narrative to CZM in South Asia in light of the region’s contemporary SCD challenges. The narrative unfolds in the four parts into which the following chapters are divided. Part I sets out the problématique of this study and its context, namely, the uniqueness of coastal South Asia. Part II expounds the concept of SCD and explains the role of ICZM in balancing and securing the seemingly conflicting interests of coastal environment protection, coastal development and CCCA to further SCD. Part III analyzes the role of law in facilitating an ICZM process and in securing the linkage between ICZM and CCCA. Part IV articulates the importance of a regional regime on ICZM for South Asia and sets out the elements, which a regional level instrument on ICZM should contain. Overall, this study is premised on the proposition that given the predictions relating to large-scale climate change impacts on the coastal zones in South Asia, it is necessary for the countries of this region to adopt a proactive approach to managing their coastal zones. The message here is that they can accomplish this by enacting appropriate laws to facilitate ICZM implementation, CCCA, and SCD. Laws that articulate clearly defined responsibilities will greatly assist decision-makers by providing guidance on how to develop, draft and implement ICZM plans. The success or failure of an ICZM program will, in large measure, be determined by the strength of its legal spine. Ultimately, this study seeks to push ICZM from its present “backwater status”94 in coastal South Asia, to the center stage of national environmental planning and management in the region. 94

Shipman & Stojanovic, supra note 86 at 380.

Part 1 The Problématique in Context

∵

This part sets out and explains the issues engaged by ICZM within the context of coastal South Asia as background for the succeeding discussion. It is organized as two chapters. Chapter two provides an overview of interacting SLR and climate change impacts and issues relating to coastal areas (in terms of vanishing land territory and maritime estates), coastal communities (the issue of internal displacement and people having to cross international borders due to SLR and climate change-related impacts), and coastal ecosystems (impacts on coastal aquifers, coral reefs and wetlands), and the international and national laws (as available in some of the coastal countries of South Asia) that call for responses to these issues. The argument is made that there is disconnect between applicable law and new realities, and in responding to the challenges, new legal rules must be crafted to dispel vagueness. Because doing so may be a drawn-out process, it is pointed out that in the interim, the practical measures offered by ICZM practice constitute a viable strategy that can help increase coastal resilience and adaptive capacities. Chapter three sets out the management and legal frameworks that support ICZM implementation in coastal South Asia. This overview of current coastal management efforts in the South Asian coastal countries identifies gaps in the present national approaches to ICZM and CCCA and articulates the need for a regional regime on ICZM for South Asia. The chapter essentially points out that there is growing visible evidence that coastal ecosystems in South Asia are under considerable stress since the developmental trajectories for the coastal environment are so perverse they may overwhelm these fragile coastal ecosystems. As such, a case is made for developing a new approach to the management of coastal areas, ecosystems, resources and communities in South Asia grounded in the concept of ICZM. In particular, there is a need to strengthen the legal framework to facilitate ICZM implementation. Given the lack/divergence of capacities at the respective national levels in South Asia and in the midst of the common problems that confront the coastal region, one way to do so is to create a strong regional ICZM framework.

chapter 2

Threatened Coasts, Communities and Ecosystems: The Need for Integrated Coastal Zone Management 2.1 Introduction Basic science informs us that it is the “heat trapping”1 feature of naturally occurring greenhouse gases (GHGs) in the atmosphere such as water vapor, carbon dioxide (CO2), methane, chlorofluorocarbons and ozone,2 that keeps the earth’s surface warm, thereby playing an integral role in sustaining life.3 In ensuring the same, GHGs act as “a sleeping bag or down comforter.”4 However, the “earth’s heat budget”5 is presently undergoing sweeping changes. Anthropogenic activities, mainly combustion of fossil fuels and coal-fired power plants, are adding large quantities of GHGs to those that occur naturally in the atmosphere. GHGs are now at far greater concentrations than at any time in the past 160,000 years,6 with CO2, the principal gas that contributes to the enhanced GHG effect, being about 40 per cent higher than in pre-industrial times.7 As well, modern industrial processes have introduced 1 Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (7 December 2005) at 28, online: INUIT, Media & Reports, Press Releases, Press Releases-2005 [Inuit Petition]. 2 “Historical Overview of Climate Change Science” in Susan Solomon et al., eds, Climate Change 2007: The Physical Science Basis (Cambridge: Cambridge University Press, 2007) 93 at 97. 3 Christina K. Harper, “Climate Change and Tax Policy” (2007) 30:2 BC Int’l & Comp L Rev 411 at 412 (HeinOnline). 4 R.T. Pierrehumbert, “Climate Change: A Catastrophe in Slow Motion” (2006) 6:2 Chicago J Int’l L 573 at 575 (QL) [Pierrehumbert, “Climate Change”]. 5 Inuit Petition, supra note 1 at 28. 6 Before the industrial era, one would have to sift through a million molecules of air to find 280 molecules of carbon dioxide. Pierrehumbert, “Climate Change”, supra note 4 at 574. 7 “Summary for Policymakers” in Working Group I Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Climate Change 2013: The Physical Science Basis, online: IPCC [“Summary for Policymakers” in Physical Science, 2013]; see also “Summary for Policymakers” in Susan Solomon et al., eds, Climate Change 2007: The Physical Science Basis (Cambridge: Cambridge University Press, 2007) 1 at 2 [“Summary for Policymakers” in Physical Science, 2007]. As at December 2012, CO2

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004282209_�03

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a series of new and extremely powerful GHGs into the atmosphere, such as chlorofluorocarbons, hydrofluorocarbons, hydrochlorofluorocarbons, perfluorocarbons, and sulfur hexafluoride, compounding the problem.8 All these occurrences have increased warming and have led to “enhanced green house effect,”9 producing far-reaching and unpredictable climatic changes affecting the integrity of a wide array of ecosystems. Climate change is altering hydrological, coastal, marine, forest, and agricultural regimes, and is replacing them with “new assemblies.”10 Section 2.2 below provides an overview of the problem of sea level rise (SLR). The three sections that follow it analyze the impact of SLR on coastal areas and maritime territories; on coastal communities; and on coastal resources, namely, groundwater, coral reefs and mangroves. All together, the discussion speaks to the far-reaching impacts of SLR on these elements and sets out applicable international and relevant national laws from the South Asian coastal countries, identifying their weak points. Naturally, the chapter concludes by emphasizing the importance of adopting an effective regime of integrated coastal zone management (ICZM) for South Asia. 2.2

Rising Seas

As is known, oceans cover almost 70 per cent of the earth’s surface and have a heat capacity that is nearly 1,000 times more than that of the atmosphere.11 Due to this feature, ocean circulation patterns play a fundamental role in stabilizing climate and moderating global biogeochemical cycles.12 Oceans also concentrations stand at 394.39 parts per million (measured at the Mauna Loa Observatory in Hawaii, USA) Earth’s CO2 Home Page, online: CO2 Now . See also “Summary for Policymakers” in Core Writing Team, Rajendra K. Pachauri & Andy Reisinger, eds, Climate Change 2007: Synthesis Report (Geneva: Intergovernmental Panel on Climate Change, 2008) 1 at 5 [“Summary for Policymakers” in Climate Change 2007]. 8 See Inuit Petition, supra note 1 at 28. 9 “Climate Change 101: Science and Impacts” in Climate Change 101: Understanding and Responding to Global Climate Change (Pew Center on Global Climate Change, January 2001 update) 1 at 2. 10 J.B. Ruhl, “Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future” (2008) 88:1 BUL Rev 1 at 11 (HeinOnline). 11 Nathaniel L. Bindoff & Jürgen Willebrand, “Observations: Oceanic Climate Change and Sea Level” in Susan Solomon et al., eds, Climate Change 2007: The Physical Science Basis (Cambridge: Cambridge University Press, 2007) 385 at 389. 12 Ibid.

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perform a series of other life-sustaining functions, the least of which is supporting the livelihood of coastal communities. Therefore, any physical, biological and biogeochemical changes in the oceans arising from global warming can have far-reaching catastrophic impacts, with potential to impair the stability of the entire climate system.13 The primary impact of these changes in the oceans will resonate on the land that borders these waters (the dry side of the coastal zone). A key manifestation of climate change impacts on the coastal zones of most countries, including those in South Asia, is through the phenomenon of SLR, which has already begun to claim low-lying lands in most of the coastal countries of this region and has triggered sporadic internal migrations of coastal populations and, in certain cases, even external migrations.14 Two factors that accelerate global SLR are thermal expansion of the oceans (or the “steric effect”) and loss of glacial ice due to increased melting. With increased dumping of GHGs into the atmosphere, atmospheric and oceanic temperatures are rising, leading to thermal expansion of the waters.15 Increased temperatures will also produce more glacial melting as well as rapid shrinkage of polar ice sheets.16 In fact, the Intergovernmental Panel on Climate Change (IPCC) in its Fifth Assessment Report (AR5) emphatically points out that since the early 1970s, glacier mass loss and ocean thermal expansion together account for nearly 75 per cent of the observed global mean SLR.17 Other factors causing SLR include increased groundwater mining, impoundment in reservoirs, increased runoff from urbanization, permafrost thawing, tectonic movements, and deforestation.18

13 14

For further details, see generally ibid. See also Robin Kundis Craig, “A Public Health Perspective on Sea-Level Rise: Starting Points for Climate Change Adaptation” (2010) 15:2 Widener L Rev 521 at 522 (HeinOnline). 15 AR5 express high confidence that the Greenland and Antarctic ice sheets have been losing mass. Furthermore, glaciers almost everywhere are shrinking, and Arctic sea ice and Northern Hemisphere spring snow cover have decreased in extent. See generally “Summary for Policymakers” in Physical Science, 2013, supra note 7. 16 See Arctic Sea Ice Shrinks to New Low in Satellite Era (26 August 2012), online: NASA . 17 Christian Nellemann, Stefan Hain & Jackie Alder, eds, In Dead Water—Merging of Climate Change with Pollution, Over-Harvest, and Infestations in the World’s Fishing Grounds (Norway: UNEP/GRID-Arendal, 2008) at 32. 18 J.A. Church et al., “Changes in Sea Level” in J.T. Houghton et al., eds, Climate Change 2001: The Scientific Basis (Cambridge: Cambridge University Press, 2001) 639 at 657–58.

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The IPCC in its Fourth Assessment Report (AR4) further intimates that there is a significant rise in the global mean sea level.19 From 1961 to 2003, the average rate of SLR was 1.8 ± 0.5 mm yr–1.20 Depending on the emission trajectory, the IPCC in this Report affirms that by 2100, global warming will cause sea levels to rise by 18 to 59 centimeters.21 These calculations are based on six scenarios, excluding “future rapid dynamical changes in ice flow.”22 These are at best conservative estimates,23 as they omit fresh water input from glacial and ice cover melting into the oceans.24 For instance, it is estimated that the West Antarctic ice sheet, which lies below sea level, contains enough ice to raise the water by several meters.25 Another important aspect to be noted is that there cannot be any spatial uniformity rate in SLR due to geological processes in relation to the earth’s crust and its mantle, the relative position of land and sea, changes in currents, upwelling, tidal range and other oceanic processes.26 Consequently, in some places, the sea may rise at rates several times higher than the global average (like in the western Pacific and the eastern Indian Ocean), and in certain other regions, the sea levels may fall contrary to the general trend (eastern Pacific and western Indian Ocean).27 The findings in AR5, which represents the most comprehensive and current science on the subject reinforces the observations in AR4 and other previous reports that the sea is rising. AR5 expresses high confidence that the rate of SLR since the mid-19th century has been larger than the mean rate during the previous two millennia. In fact, the ascendancy in the global mean sea level

19 Bindoff & Willebrand, supra note 11 at 387. 20 Ibid. 21 Core Writing Team, Pachauri & Reisinger, eds, Climate Change 2007: Synthesis Report (Geneva: Intergovernmental Panel on Climate Change, 2008) at 45. 22 Ibid. 23 If ice-sheet mass loss is accounted, the anticipated sea-level rise until 2100 is likely to be at least twice than that presented by IPCC AR4, with an upper limit of approximately two meters. The Copenhagen Diagnosis: Updating the World on the Latest Climate Science (Sydney: UNSW Climate Change Research Centre, 2009) at 39. 24 Core Writing Team, Pachauri & Reisinger, eds, supra note 21 at 44. 25 Church et al., supra note 18 at 641. 26 Bindoff & Willebrand, supra note 11 at 411; see also Donald S. Lemmen & Fiona J. Warren, eds, Climate Change Impacts and Adaptation: A Canadian Perspective (Ottawa: Climate Change Impacts and Adaptation Directorate, 2004) at 115; see also Nick Bryant, “Lowlying Pacific islands ‘growing not sinking’ ” BBC News (3 June 2010), online: BBC News . 27 Bindoff & Willebrand, ibid.

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during 1901–2010 stands at 0.19 meters.28 As far as determination of future rise is concerned, the report relies on a set of four new pathways—‘representative concentration pathways’ (RCP) and it expresses medium confidence that the global mean SLR for 2081–2100 (relative to 1986–2005) will likely be in the following ranges: for RCP2.6, it is expected to be between 0.26 to 0.55 meters; for RCP4.5, between 0.32 to 0.63 meters; for RCP6.0, between 0.33 to 0.63 meters; and for RCP8.5, between 0.45 to 0.82 meters.29 In these projections, thermal expansion will account for 30 to 55 per cent of the mean SLR, while glacier melt will contribute 15 to 35 per cent.30 In short, the report categorically asserts that the “[g]lobal mean sea level will continue to rise during the 21st century.”31 The harms associated with SLR are serious and well recognized. Generally, SLR will lead to inundation of wetlands and lowlands; erode shorelines; increase salinity in estuaries and aquifers; alter tidal ranges in rivers and bays; change the locations and patterns where rivers deposit sediments; increase wave heights; lead to storm surges; and reduce the amount of light that reaches the ocean bottom.32 Perhaps, the most visible impact of SLR is that of inundation and flooding. A rise in sea level is expected to inundate hundreds of thousands of square kilometers of low-lying areas, leading to the mass destruction of property and infrastructure, destabilizing coastal life.33 Inundation can be permanent, in 28 “Summary for Policymakers” in Physical Science, 2013, supra note 7 at SPM-6. 29 Ibid. at SPM-18. 30 Ibid. 31 Ibid. 32 See generally Richard J. Nicholls & Poh Poh Wong, “Coastal Systems and Low-Lying Areas” in M.L. Parry et al., eds, Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 315. For more details, see James G. Titus, “Greenhouse Effect, Sea Level Rise, and Land Use” (1990) 7:2 Land Use Pol’y 138 (ScienceDirect). 33 It has been estimated that Uruguay, Egypt, the Netherlands, Bangladesh and the Majuro Atoll in the Marshall Islands, will lose 0.05 per cent, one per cent, six per cent, 17.5 per cent, and 80 per cent, respectively of their land territory to the rising seas in the event of a one meter rise. “Summary for Policymakers: Scientific-Technical Analyses of Impacts, Adaptations, and Mitigation of Climate Change” in Robert T. Watson, Marufu C. Zinyowera & Richard H. Moss, eds, Climate Change 1995: Impacts, Adaptations, and Mitigation of Climate Change: Scientific-Technical Analyses, Contribution of Working Group II to the Second Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 1996) 1 at 11; UNFCCC, Climate Change: Impacts, Vulnerabilities and Adaptation in Developing Countries (UNFCCC, 2007) at 20, online: UNFCCC . While a one-meter rise will

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which case areas remain completely submerged underwater, or may remain underwater for a significant portion of the day, while episodically flooded areas are at risk only from extreme weather events.34 SLR can also pose serious health consequences. It has been observed: [s]ea-level rise will create new reservoirs of warm, brackish, stagnant water, perfect for breeding mosquitoes that can transmit malaria, dengue fever and a host of other tropical mosquito-borne diseases, while the warming sea itself will harbor increasing concentrations of opportunistic viruses and bacteria such as cholera and Vibrio vulnificus . . .35 As oceanic waters become warmer,36 they lose their ability to hold dissolved oxygen essential for sustaining sea life.37 Algal blooms thrive in oxygendepleted areas and may develop into harmful levels.38 Sea surface temperature increases will affect fish distributions as sea creatures migrate towards cooler and deeper waters.39 As well, it can result in lesser fish yield, impact species inundate much of Alexandria, a SLR of 50 centimeters in Tanzania, will inundate over 2,000 square kilometers of land, and the financial loss is pegged at USD51 million. Russell Arthurton & Kwame Korateng, “Coastal and Marine Environments” in UNEP, Africa Environment Outlook 2: Our Environment, Our Wealth (Nairobi: UNEP, 2006) 155 at 176. 34 US, New York State Sea Level Rise Task Force, Report to the Legislature (2010) at 19, online: Dep’t of Environmental Conservation . 35 Craig, supra note 14 at 540. 36 Bindoff & Willebrand, supra note 11 at 387 & 391. The AR5 points out that it is virtually certain that the upper ocean (0–700 meters) has warmed from 1971 to 2010. On a global scale, the ocean warming is largest near the surface. “Summary for Policymakers” in Physical Science, 2013, supra note 7 at SPM-4. 37 Lauren F. Jones, “Treasuring the Chesapeake: An Analysis of Climate Change and Its Impact on the Chesapeake Bay and Maryland’s Surrounding Coastal Regions” (2009) 38:2 U Balt L Rev 331 at 332 (HeinOnline) (terming this phenomenon as “temperaturedissolved oxygen squeeze”). 38 R.F. McLean & Alla Tsyban, “Coastal Zones and Marine Ecosystems”, in James J. McCarthy et al., eds, Climate Change 2001: Impacts, Adaptation, and Vulnerability (Cambridge: Cambridge University Press, 2001) 335 at 366; Socialist Republic of Vietnam, Vietnam’s Second National Communication to the United Nations Framework Convention on Climate Change (Hanoi: Ministry of Natural Resources and the Environment, 2010) at 83; see also Israel, Ministry of Environmental Protection, Israel’s Second National Communication on Climate Change Submitted under the United Nations Framework Convention on Climate Change (Jerusalem: Ministry of Environmental Protection, 2010) at 87. 39 For an overview of different impacts, see Cynthia Rosenzweig & Gino Casassa, “Assessment of Observed Changes and Responses in Natural and Managed Systems” in M.L. Parry et al.,

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distribution and lead to increased variability in catches. While the link between global warming and stronger hurricanes has yet to be clearly established, it is believed that rising sea surface temperatures will brew more intense tropical cyclones. As the IPCC affirms, “[t]here is observational evidence for an increase of intense tropical cyclone activity in the North Atlantic since about 1970, correlated with increases of tropical sea surface temperatures.”40 Apart from their devastation and consequent loss of life, powerful storms can prove severely destructive of biodiversity.41 It is also believed that temperature increases and freshening can lead to a collapse of the North Atlantic thermohaline circulation, triggering other profound impacts.42 Moreover, oceans form one of the largest natural reservoirs of carbon. It is estimated that, on a daily basis, the world’s seas uptake nearly 22 million metric tons of CO2.43 The CO2 dissolves and reacts with H2O to form carbonic

40

41

42 43

eds, Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 79 at 97 (fish species like sardines, anchovies, red mullet and bass are moving north); see also Fisheries and Aquaculture in Our Changing Climate, online: FAO ; UNFAO, Fisheries and Aquaculture Department, Strategy for Fisheries, Aquaculture and Climate Change: Framework and Aims 2011–16 (Rome: FAO, 2012) [UNFAO, Strategy for Fisheries]; see also Cook Islands, National Environment Service, Cook Islands Second National Communication under the United Nations Framework Convention for Climate Change (Cook Islands: National Environment Service, 2011) at 48 (warmer ocean temperature has affected pearl farming). “Summary for Policymakers” in Physical Science, 2007, supra note 7 at 9. Tropical cyclones have major consequences for Bangladesh. At the global level, from 1980–2000, 250,000 deaths occurred due to tropical cyclones, out of which 60 per cent were in Bangladesh. See also Nicholls & Wong, supra note 32 at 338. Commonwealth of Dominica, Initial National Communication under the United Nations Framework Convention on Climate Change (Roseau: Environmental Coordinating Unit, Ministry of Agriculture and the Environment, 2001) at 31 (reporting that Hurricane David, devastated the feeding and nesting sites of Dominica’s endemic parrots, endangering them). Ibid. at 15. Secretariat of the Convention on Biological Diversity, Scientific Synthesis of the Impacts of Ocean Acidification on Marine Biodiversity, CBD Technical Series No. 46 (Montreal: Secretariat of the Convention on Biological Diversity, 2009) at 12. AR5 notes that the oceans have absorbed about 30 per cent of the emitted anthropogenic carbon dioxide, contributing to ocean acidification. “Summary for Policymakers” in Physical Science, 2013, supra note 7 at SPM-7.

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acid, turning an essentially alkaline medium into an acidic one.44 Simply stated, ocean acidification is the decrease in the pH of seawater due to the uptake of anthropogenic CO2.45 Thus, if we are not successful in our efforts to control excessive dumping of GHGs (including CO2) into the atmosphere, the carbon chemistry of the oceans will be considerably altered.46 This increase in CO2 levels will reduce reef calcification47 contributing to coral bleaching and unleash other secondary impacts.48 Given the foregoing, it is clear that climate change impacts on coastal areas fall under two broad categories: biophysical and socio-economic. Biophysical impacts include: 1) accelerated coastal erosion;49 2) increased flood frequency;50 3) increased precipitation in certain regions (while reducing precipitation in others);51 4) saltwater intrusion into estuaries and aquifers and disruptions in the fresh-salt water interface;52 5) changes in wind patterns and intensity;53 6) decline in biodiversity as well as habitat loss and

44 45 46 47 48

49

50 51

52 53

See generally Ellycia Harrould-Kolieb, Matthew Huelsenbeck & Virginia Selz, Ocean Acidification the Untold Stories (Washington, DC: Oceana, 2010). Jean-Pierre Gattuso & Lina Hansson, eds, Ocean Acidification (Oxford: Oxford University Press, 2011) at 2. Rachel Baird, Meredith Simons & Tim Stephens, “Ocean Acidification: A Litmus Test for International Law” (2009) 3 Carbon & Climate LR 459 at 460. McLean & Tsyban, supra note 38 at 362. Ibid.; see also Luitzen Bijlsma et al., eds, Preparing to Meet the Coastal Challenges of the 21st Century: Conference Report World Coast Conference 1993 (The Netherlands: Ministry of Public Works and Water Management, April 1994) at 303. Rosenzweig & Casassa, supra note 39 at 92; J. Dronkers et al., eds, Report of the Coastal Management Subgroup: Strategies for Adaption to Sea Level Rise (Geneva: IPCC, Response Strategies Working Group, 1990) at 4; see also Masnellyarti Hilman, ed., Indonesia Second National Communication Under The United Nations Framework Convention on Climate Change (UNFCCC), (Jakarta: Ministry of Environment, 2010) at IV-30. Dronkers et al., eds, ibid. For instance, see Government of Mauritius, Second National Communication of the Republic of Mauritius under the United Nations Framework Convention on Climate Change (UNFCCC) (Government of Mauritius, 2010) at 77 [Mauritius, Second National Communication]. See generally A. Melloul & M. Collin, “Hydrogeological Changes in Coastal Aquifers Due to Sea Level Rise” (2006) 49 Ocean & Coast Mgmt 281 at 281-97 (ScienceDirect). Increase in greenhouse gases will cause changes in the direction and speed of wind in Thailand. Thailand, Thailand’s Second National Communication under the United Nations Framework Convention on Climate Change (Bangkok: Ministry of Natural Resources & Environment, 2010) at 71.

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modification;54 7) increased sea surface temperatures;55 8) increased wave attacks and storm-surges;56 and 9) spreading of invasive species.57 The main socio-economic consequences include: 1) large-scale inundation and permanent submergence of large parcels of coastal land and coastal habitats;58 2) risk to human lives and well-being;59 3) colossal damage to infrastructure;60 4) disease outbreaks;61 5) losses in recreation amenities and tourism values;62 7) damage to cultural and historical assets;63 and 8) reductions in fisheries, forests and agriculture.64 In the succeeding discussion, some of the major impacts of SLR on coastal areas, communities and ecosystems and possible legal responses are analyzed in greater detail. 54 55 56 57 58

59

60

61

62

63

64

SLR is expected to increase the rate of net coastal wetland loss. Bijlsma et al., eds, supra note 48 at 311. For more on this topic, see supra notes 36–39 and accompanying text. Rosenzweig & Casassa, supra note 39 at 92–93. Gulf of Maine Council on the Marine Environment, Marine Invasive Species: State of the Gulf of Maine Report (np: Gulf of Maine Council on the Marine Environment, 2010) at 5. A one-meter rise in sea level is predicted to impact nearly 145 million people, causing damage to nearly 2,223,000 square kilometers of land area and racking up costs estimated at USD944 billion. See generally D. Anthoff et al., “Global and Regional Exposure to Large Rises in Sea-level: A Sensitivity Analysis”, Working Paper 96 (Norwich: Tyndall Centre for Climate Change Research, 2006). For instance, coastal communities, particularly in low-income countries are vulnerable to a range of health effects due to climate variability like cholera, and shellfish poisoning. Nicholls & Wong, supra note 32 at 334–35. It is doubtful whether the majority of coastal protection structures like seawalls, and coastal dikes can withstand the pressures from the sea. McLean & Tsyban, supra note 38 at 362. In the United Kingdom, to maintain sea defenses and shore protection works, approximately USD500 million is being spent. Ibid. at 365. These coastal defences will in due course lose their stability and become less functional. See also Nicholls & Wong, ibid. at 333. Higher temperatures, precipitation and humidity facilitate the spread of diseases such as chikungunya, malaria, diarrhea and dengue. Mauritius, Second National Communication, supra note 51 at 81; Hilman, ed., supra note 49 at IV-45. The economies of most coastal countries are heavily oriented towards beach tourism (sun, sea, and sand), which can be badly impacted by climate change and S.L.R. Nicholls & Wong, supra note 32 at 335–36. A 0.5 meter rise in sea level and absence of protective measures can lead to the loss of nearly 52 per cent of monuments and historic sites in the Nile delta. McLean & Tsyban, supra note 38 at 367. See generally Gerald C. Nelson et al., Climate Change Impact on Agriculture and Costs of Adaptation, Food Policy Report (Washington, DC: International Food Policy Research Institute, 2009); see also UNFAO, Strategy for Fisheries, supra note 39.

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Receding Coastlines: Impact on Coastal Areas and Maritime Territories

To give effect to the principle that the “land dominates the sea,”65 (essentially, coastal frontage) under the United Nations Convention on the Law of the Sea, 1982 (LOSC), all coastal states are entitled to certain maritime zones, such as internal waters,66 a territorial sea,67 a contiguous zone,68 an exclusive economic zone,69 a continental shelf 70 and, if certain prescribed geomorphologic conditions exist, then to an extended continental shelf.71 Within each of these zones, states exercise varying combinations of sovereignty, sovereign rights and jurisdictions, which progressively diminish as the distance from the coastline increases.72 The perimeter of all maritime zones is measured from the baseline, which can be normal,73 straight,74 or archipelagic.75 Baselines also play an essential role in the delimitation of maritime boundaries.76 65 66

North Sea Continental Shelf, [1969] ICJ Rep 3 at 52. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397, 21 ILM 1261 (entered into force 16 November 1994) [LOSC], art. 8. 67 Ibid., arts. 17–19. 68 Ibid., art. 33. 69 Ibid., arts. 56–58. 70 Ibid., art. 76. 71 Ibid., art. 76(4)–(6). 72 US, Senate, United Nations Convention on the Law of the Sea, with Annexes, and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, with Annex: Message from the President of the United States, 103d Cong, 2d Sess., Treaty Doc. 103–39 (1994) at 2, online: US Senate Committee on Foreign Relations, Treaties, United Nations Convention on the Law of the Sea . 73 LOSC, supra note 66, art. 5 & art. 6. See also International Law Association, Sofia Conference (2012): Baselines Under the International Law of the Sea, at 31, online: International Law Association [ILA, Sofia Conference]. 74 LOSC, ibid., art. 7; see also Tony George Puthucherril, “Rising Seas, Receding Coastlines, and Vanishing Maritime Estates and Territories: Possible Solutions and Reassessing the Role of International Law” (2014) 16 Int’l Community LR 38. 75 LOSC, ibid., arts. 47, 2(1), 49(1), 52(1) & 53(2); Michael Gagain, “Climate Change, Sea Level Rise, and Artificial Islands: Saving the Maldives’ Statehood and Maritime Claims Through the Constitution of the Oceans” (2012) 23 Colo J Int’l Envtl L & Pol’y 77 at 95 (HeinOnline). 76 LOSC, ibid., art. 15; see also ibid., arts. 74 & 83; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), [2007] ICJ Rep

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As rising seas push water inland to erode the coastlines, key baseline points like low-tide elevations (drying rocks),77 fringing reefs,78 riverbanks,79 and islands may also become submerged.80 This can unsettle baselines, which may then ambulate81 to reflect new physical realities and conditions. Correspondingly, certain maritime zones will also shrink, resulting, mutatis mutandis, in a decrease in related entitlements and prerogatives that the coastal state otherwise enjoyed.82 In other words, as coastal territories vanish, so too will some maritime zones and the entitlements associated with them. At the same time, this may expand the scope of rights enjoyed by other states. For instance, the right to innocent passage that some states have over certain waters could now enlarge into a freedom of navigation.83 Similarly, as large parts of the exclusive economic zone (EEZ) become high seas, all states (coastal or land-locked) can conduct fishing and other operations in waters that were previously off-limits. Such ambulation in baselines and the reduction in maritime estate can prove particularly devastating for South Asian countries that depend on maritime resources for economic support and well-being. In such situations, other than for Bangladesh (whose coastlines are highly unstable due to the presence of deltas and its double concave nature84 and 659 at 741; In Continental Shelf (Libyan Arab Jarnahiriya/Malta), [1985] ICJ Rep 13 at 47; Maritime Delimitation in the Area between Greenland and Jan Mayen, [1993] ICJ Rep 38 at 61. 77 Charles Di Leva & Sachiko Morita, “Maritime Rights of Coastal States and Climate Change: Should States Adapt to Submerged Boundaries?”, Law & Development Working Paper Series No. 5, at 16, online: The World Bank . 78 Ibid. 79 Ibid. 80 Ibid. at 17. 81 Jenny Grote Stoutenburg, “Implementing a New Regime of Stable Maritime Zones to Ensure the (Economic) Survival of Small Island States Threatened by Sea-Level Rise” (2011) 26 Int’l J Mar & Coast L 263 at 271–76 (forwarding a case for a regime of stable baselines); see also David D. Caron, “Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict” in Seoung-Yong Hong & Jon M. Van Dyke, eds, Maritime Boundary Disputes, Settlement Processes, and The Law of the Sea (The Netherlands: Martinus Nijhoff, 2009) 1 at 10. 82 Julia Lisztwan, “Stability of Maritime Boundary Agreements”, Note, (2012) 37 Yale J Int’l L 153 at 165 (HeinOnline). 83 Leva & Morita, supra note 77 at 20. 84 Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (BANGLADESH/MYANMAR), 16, Judgment (14 March 2012) ¶279

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whose interests may be protected via article 7(2))85 for other coastal countries in South Asia and elsewhere, the ambulatory nature of the baselines does not bode well for current or future growth.86 Pakistan, for example, has relied on a system of straight baselines to demarcate its maritime estate and as rising seas claim these basepoints, the maritime claims of this country will be considerably reduced.87 As we can see, climate-change-induced SLR threatens to redraw the map of the world, and South Asia is no exception to this.88 In consonance with the generally accepted understanding of the concept of statehood, the Montevideo Convention on the Rights and Duties of States89 (Montevideo Convention) enumerates the following as its constituting elements, namely that “[t]he State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.”90 In particular, for Small Island Developing States (SIDS) like the Maldives, Tuvalu, Kiribati and Marshall Islands that lie only a few meters above the sea, the situation can be catastrophic as they face the prospect of total inundation of their land masses.91 These countries are formed mainly out of low-lying atolls and have very limited resource bases.92 It is forecast that rising seas will gobble (International Tribunal for the Law of the Sea), online: ITLOS, Search . 85 Though inserted into the LOSC text due to the efforts of Bangladesh and was drafted with the specific case of Ganges/Brahmaputra River delta in mind, it can be applied to other deltaic countries as well. Myron H. Nordquist, ed., 2 United Nations Convention on the Law of the Sea, 1982: A Commentary (The Netherlands: Martinus Nijhoff Publishers, Dordrecht, 1993) at 101. 86 Stoutenburg, supra note 81; see also Caron, supra note 81. 87 See generally US, Bureau of Oceans & International & Environmental & Scientific Affairs, Limits in the Seas: Straight Baselines Claim: Pakistan (No. 118) (Office of Ocean Affairs, 1996); see also Territorial Waters and Maritime Zones Act 1976 (22 December 1976, Pakistan). 88 It is difficult to predict when exactly these events will unfold since the rate of SLR can vary depending on several factors. See supra notes 19–31 and accompanying text. 89 For the text, see Montevideo Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934). 90 Ibid., art. 1. 91 Stoutenburg, supra note 81 at 268. 92 For more details regarding the geographical features of atolls, see Colin D. Woodroffe, “Reef-island Topography and the Vulnerability of Atolls to Sea-Level Rise” (2008) 62 Global & Planetary Change 77 at 78 (Science Direct); see also UN RIO+20 United Nations Conference on Sustainable Development, The Future We Want, A/CONF.216/L.1*, 19 June 2012, ¶178.

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up entire parts of the majority of SIDS,93 leading to the “sinking” islands phenomenon.94 This scenario is not without precedence. In 1999, Kiribati lost two of its uninhabited islands (Tebua Tarawa and Abanuea) to rising seas.95 The IPCC affirms that “[s]ea-level rise impacts on the low-lying Pacific Island atoll states of Kiribati, Tuvalu, Tokelau and the Marshall Islands may, at some threshold, pose risks to their sovereignty or existence.”96 In the 2004 Indian Ocean tsunami, large parts of the Maldives were completely under the sea for a few minutes.97 In the Sundarbans in India, the residents of the Lohachara Island (located at the confluence of the rivers Ganges and Brahmaputra) had to permanently relocate, as the island was swamped by the Bay of Bengal.98

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Koko Warner et al., In Search of Shelter: Mapping the Effects of Climate Change on Human Migration and Displacement (CARE International, 2009) at 18–19; Richard Shears, “The world’s first climate change refugees to leave island due to rising sea levels”, MailOnline (18 December 2007) online: MailOnline, Advanced Search ; see also Neil Tweedie, “Carteret Islands: ‘The sea is killing our island paradise’ ”, The Telegraph (9 December 2009) online: The Telegraph, Archive ; Susin Park, Climate Change and the Risk of Statelessness: The Situation of Low-lying Island States, UNHCR, Legal and Protection Policy Research Series, PLA/2011/04 (Switzerland: Division of International Protection, 2011) at 2–3; see also Walter Kälin & Nina Schrepfer, Protecting People Crossing Borders in the Context of Climate Change Normative Gaps and Possible Approaches, UNHCR, Legal and Protection Policy Research Series, PPLA/2012/01 (Switzerland: Division of International Protection, 2012) at 2–3. Submission: Climate Change and Statelessness: An Overview, UNHCR (15 May 2009) at 1. Alex Kirby, “Islands disappear under rising seas”, BBC News (14 June 1999) online: BBC News ; see also Pacific at Risk: Our Islands, Our Lives, online: SPREP . W. Neil Adger, Shardul Agrawala & M. Monirul Qader Mirza, “Assessment of Adaptation Practices, Options, Constraints and Capacity” in M.L. Parry et al., eds, Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 717 at 736. See also UN, UNTV: 21st Century, Maldives: Safer Islands, online: UN News & Media Multimedia, Television, 21st Century (reporting that the Maldives lost 20 islands during the 2004 tsunami); USAID, Tsunami Displacement: Lessons for Climate Change Adaptation Programming Findings for the Maldives—Overview Report (Washington, DC: USAID, 2010) at 8. Subhra Priyadarshini, “Vanishing islands, Displaced Climate Casualties, Underlying truth”, The Telegraph [of Kolkata] (30 October 2006), online: The Telegraph, Archives, Weekly Features, Knowhow . There is controversy as to the true causative factor. Achintyarup Ray, “Vanishing islands: Blame on KoPT”,

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Since SLR is a gradual process, the disappearance of islands like the Maldives will also likely be a slow but sure process.99 Even before the total obliteration of their land territory, it is probable that many of the coral-reef islands in the Maldives will be rendered uninhabitable, triggering migrations of coastal populations to other lands.100 Of particular concern will be the impact of salinity intrusion into their freshwater lenses, the destruction of coastal agriculture, and coral bleaching.101 Already, the Maldives is struggling to find freshwater sources. As these islands are denuded of their ability to sustain “human habitation or an economic life,”102 and as their land territory vanishes, the Maldives faces the danger of degenerating into a disadvantaged sub-category of island, called “rock,”103 which can produce only territorial waters and contiguous zones.104 In other words, it is possible that the EEZ that the Maldives once generated can vanish. As the sea moves further inland and as the islands disappear, the Maldives may lose its other maritime zones as well and the exclusive and sovereign right to exploit resources, particularly, the fish stocks that these waters harbor. This can have major economic implications, since the maritime zones and attendant resources form the country’s primary economic backbone.105 The Maldives also faces the prospect of losing significant portions of its population to climate-change-related disasters like cyclones and typhoons, with survivors migrating to other areas, rending the social fabric. Thus, out of

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The Times of India (3 April 2009), online: The Times of India, Archives . Rosemary Rayfuse, “W(h)ither Tuvalu? International Law and Disappearing States” (University of New South Wales Faculty of Law Research Series, Paper 9, 2009) at 6. See generally Tony George Puthucherril, “Adapting to Climate Change and Accelerated Sea-Level Rise through Integrated Coastal Zone Management Laws: A Study of the South Asian Experience” in Aldo Chircop, Scott Coffen-Smout & Moira McConnell, eds, Ocean Yearbook, vol. 26 (Leiden: The Netherlands, 2012) 533 at 573. David Freestone, “International Law and Sea Level Rise” in Robin Churchill & David Freestone, eds, International Law and Global Climate Change, International Environmental Law & Policy Series (London: Graham & Trotman, 1991) 109 at 112. LOSC, supra note 66, art. 121(3). Rocks are basically islands, but they are a disadvantaged category of islands. Ibid., art. 121(1). Ibid., art. 121(3). See generally Clive Howard Schofield, The Trouble with Islands (LLM Thesis, The Faculty of Graduate Studies, University of British Columbia, 2009) [unpublished]; see also Clive Schofield, “Shifting Limits? Sea Level Rise and Options to Secure Maritime Jurisdictional Claims” (2009) 3:4 Carbon & Climate LR 405 at 409 (HeinOnline) [Schofield, “Shifting Limits?”].

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the four conditions essential to statehood as enumerated in the Montevideo Convention, at least two (a permanent population and a defined territory) will be seriously compromised, throwing into doubt the country’s statehood status. Among the measures suggested to protect the rights and interests of countries like the Maldives in respect of their maritime zones, a range of promising solutions have been proposed. One solution is to proceed in a state of inaction or maintain the status quo, allowing nature to determine the course of events. In such a scenario, the seas will slowly move in and determine the equilibrium. While this will save countries the trouble of diverting scarce economic resources and spending huge amounts of money to construct costly barriers to the sea,106 the ‘status quo’ approach has several disadvantages. As mentioned, coastal states will lose land and infrastructure and more importantly their inhabitants; for small island states like the Maldives, this can spell the end of their existence. To address the issues inherent in a diminishing maritime estate, an astute way to deal with the crisis is to negotiate a new protocol on SLR107 or the UN General Assembly can pass resolutions to provide guidance on the matter. Failing that, a conference on the Law of the Sea can be organized to fill in the gaps. Additionally, the amending procedures contemplated under the LOSC can be utilized to modify or reinterpret the rules to cope with new and unforeseen situations.108 For instance, since one of the main issues of concern is the ambulatory nature of baselines and outer limits of the various maritime zones, these demarcation points can be permanently fixed.109 Using the provision on unstable coasts, straight baselines can be drawn in new areas. Article 7(2) may provide a legal architecture to resolve problems that arise in cases where coastlines are highly unstable, particularly where SLR exacerbates 106 But see Nicholls & Wong, supra note 32 at 317 (“[a]daptation costs for vulnerable coasts are much less than the costs of inaction (high confidence)”). 107 David Freestone & John Pethick, “Sea Level Rise and Maritime Boundaries: International Implications of Impacts and Responses” in Gerald H. Blake, ed., Maritime Boundaries, vol. 5, World Boundaries (NY: Routledge, reprint 1997) 73 at 79. This was one of the primary suggestions of the CZMS of the IPCC. In its “Suggested Ten-Year Timeline for the Implementation of Comprehensive Coastal Zone Management Plans,” the CZMS recommended the adoption of such a protocol by 1992 to “provide a framework for international and multinational cooperation in dealing with the full range of concerns related to impacts of sea level rise and climate change impacts on the coastal zone.” WMO, UNEP & IPCC, Climate Change: The IPCC Response Strategies (Washington DC: Island Press, 1991) at 129, 139–40. 108 LOSC, supra note 66, arts. 312–14. 109 Stoutenburg, supra note 81 at 275.

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the instability. By relying on this method, appropriate points can be selected along the furthest seaward extent of the low-water line. Straight baselines will remain effective until they are changed by the coastal states, in accordance with the LOSC. If a state chooses not to take any action to change its baseline, the old baseline will remain effective. Adoption of such a measure will ensure that if the low-water line were to retreat due to SLR, the affected coastal states will continue to retain their maritime zones. This will particularly benefit SIDS, which might otherwise lose not only their maritime estates but also their statehood. As well, article 5 provides considerable leeway to coastal states in determining their normal baselines, which is the charted low-water line.110 Hence, it is the state that determines the choice of large-scale charts, with a presumption weighted heavily on their side, despite the general practice that the chosen chart is a “sufficiently accurate representation of the normal baseline.”111 Again, due to unique geographical circumstances, article 7(2) permits the pictorial version of the straight baseline to remain effective. Accordingly, it has been suggested that coastal states threatened by SLR and consequent erosion can “officially recognize” a chart that shows features that existed prior to these being claimed by the rising sea and thereby maintain the status quo. Similarly, the LOSC allows states to establish the outer limits of their continental shelf for both the 200-nautical-mile limit and to any extended shelf. Since these limits are described as “permanent” in the LOSC, any subsequent recession of baselines due to SLR will not affect the breadth of the continental shelf. In particular, if we can interpret article 76(9) (which obliges coastal states to deposit with the UN Secretary-General any charts and/or other relevant information that permanently describes the outer limits of its continental shelf) as requiring even those coastal states that have a continental shelf that extends only to 200 nautical miles to deposit relevant information to enable the permanent fixation of the outer limits of the continental shelf, this can guard the state against any subsequent regression in the baseline and/or shrinkage of its maritime zones.112 In line with this approach, numerous commentators have argued that there is merit in permanently fixing the boundaries of all maritime zones so as to divest them of their ambulatory character.113 Such an approach aligns with the 110 LOSC, supra note 66, art. 5; ILA, Sofia Conference, supra note 73. 111 ILA, Sofia Conference, ibid. 112 Stoutenburg, supra note 81 at 269–70. 113 J.L. Jesus, “Rocks, New-born Islands, Sea Level Rise and Maritime Space” in J.A. Frowein et al., eds, Negotiating for Peace-Liber Amicorum Tono Eitel (New York: Springer, 2003) 579 at 601; Schofield, “Shifting Limits?”, supra note 105 at 416; Rosemary G. Rayfuse,

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principles of fairness and equity, since a freeze will not erode any of the entitlements and jurisdictional rights that coastal nations enjoy over their maritime spaces and resources. Furthermore, it will ensure that states do not encroach on the maritime zones of other states.114 Nevertheless, these propositions have been disputed on the basis that coastal states stand to gain more ocean space as their coasts retreat. For instance, if the coastline were to recede by one mile, given fixed baselines, the coastal state can claim an additional mile of ocean space, which will become its internal waters and accompanying resources. If its baseline were ambulatory, the state will continue to have a 12 mile territorial sea but the high seas will increase by one mile.115 However, this argument fails to take into account the fact that the increase is primarily because the state has lost one mile of its land territory, which is now under water. Thus, it makes good sense to have baselines permanently fixed. While these suggestions may help to maintain the de jure status, at a de facto level the charts will be an inaccurate representation of ground realities.116 Such stabilization will render the basepoints constant. However, as the rising seas claim more land, the internal waters of coastal states will enlarge, which may prove detrimental to international shipping. A coastal state has sovereignty over its internal waters, which means it can exclude foreign ships at will.117 As mariners rely on these charts for navigational purposes, to adopt such a course of action places international shipping at risk. Already, there have been several legal conflicts over whether the charted low-water line is the actual lowwater line.118 In such a situation, it may then be necessary to develop two sets of charts—one for maritime jurisdictional purposes, and the other for navigational safety. An alternative will be to design charts that superimpose ground realities over the original maritime zone measurements. As pointed out earlier, SLR rates may not be uniform, and this can complicate matters. For instance, in some coastal countries, the rate of SLR may “International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma”, University of New South Wales Faculty of Law Research Series, (Paper 52, 2010) (SSRN) at 12 [Rayfuse, “International Law”]; AHA Soons, “The Effects of a Rising Sea Level on Maritime Limits and Boundaries” (1990) 37(2) Nethl Int’l L Rev 207 at 216, 231; Caron, supra note 81 at 14. 114 See generally Alain Khadem, “Protecting Maritime Zones from the Effects of Sea Level Rise” (1998) 6(3) Boundary and Security Bull 76. 115 Lisztwan, supra note 82 at 170. 116 Schofield, “Shifting Limits?”, supra note 105 at 413. 117 Stoutenburg, supra note 81 at 275–76. 118 For instance, see generally Maritime Delimitation and Territorial Questions between Qatar and Bahrain, [2001] ICJ Rep 40; see also In the Matter of Arbitration Between: Guyana v Suriname, Permanent Court of Arbitration, The Hague, Award (17 September 2007) ¶396.

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be accelerated due to localized geographical factors or increased groundwater extraction. In such cases, the baselines for this country will move further inland in comparison to a neighboring state, and this can have consequences for their maritime boundaries, for, under international law, a treaty can become void due to a fundamental change in circumstances (article 62(2)(a) of the Vienna Convention on the Law of Treaties, 1969119 [clausula rebus sic stantibus]). However, even in such situations, the application of the clausula rebus sic stantibus rule is expressly precluded in case of treaties that establishes a boundary, including a maritime delimitation treaty.120 Such treaties fall within the category of “objective or status contracts,” and their consequences go well beyond the parties to the treaty. Accordingly, states can protect many of their maritime entitlements by delimiting their maritime boundaries in bilateral treaties with neighboring states, rendering any subsequent regression of coastlines due to SLR of no consequence.121 However, this may not be a viable solution for SIDS that are geographically secluded. As far as the issue of protecting statehood is concerned, as seen previously, rocks are incapable of generating an EEZ or continental shelf. A related issue is whether SIDS should be allowed to retain control over their maritime spaces or if these areas should automatically be allowed to become high seas when the islands that generate the maritime zones turn to “rocks” or are inundated. As mentioned above, it is common knowledge that SIDS have contributed the least to the phenomenon of climate change and therefore it is profoundly inequitable that they should suffer the worst impacts of climate change and SLR.122 119 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679 (entered into force 27 January 1980) art. 62. 120 Stoutenburg, supra note 81 at 280; see also Aegean Sea Continental Shelf (Greece v Turkey), [1978] ICJ Rep 3, ¶85. 121 See also Stoutenburg, ibid. at 281; See generally In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (2014), (Court of Arbitration), (Arbitrators: Rüdiger Wolfrum, Jean-Pierre Cot, Thomas A. Mensah, Pemmaraju Sreenivasa Rao, Ivan Shearer). Relying on the potential impacts of climate change and SLR, Bangladesh sought to discredit the provisional equidistance/relevant circumstances method since the low tide elevations chosen by both India and Bangladesh would inundate in due course. The Tribunal turned this argument down, since it was concerned only with the “physical reality at the time of the delimitation,” and not the future instability of the coastline. Ibid., ¶215. Furthermore, it was held “neither the prospect of climate change nor its possible effects can jeopardize the large number of settled maritime boundaries throughout the world. This applies equally to maritime boundaries agreed between States and to those established through international adjudication.” Ibid., ¶217. 122 Schofield, “Shifting Limits?”, supra note 105 at 416.

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On the grounds of equity and fairness, again a water-tight case can be made for such states being allowed to retain their rights over maritime zones and the valuable resources contained therein. Nevertheless, it is doubtful whether these states or their dispersed populations can actually exercise effective control over maritime spaces, since the native populations will have migrated to other lands and the uninhabited rocks may be located thousands of miles away from their new places of habitation. Still, there is sufficient rationale for allowing these vanishing SIDS to retain their maritime territories. It may be difficult for SIDS to find a state willing to sell land to it, particularly coastal frontage. Thus, permitting SIDS to use their maritime spaces and their remaining lands guarantees them an opportunity to sustain their fishing and offshore industries. Maritime spaces are highly prized and to divest a state of its rights over these spaces and resources is patently unfair. While there are presently several instances of countries administering islands that are situated hundreds and thousands of kilometers from mainlands, for SIDS, exercising rights over the water column and corresponding seabed may involve considerable logistical challenges if the new territory that is willing to accommodate its displaced population is not reasonably close to the sinking rocks. In such a scenario, another possible option is for a SIDS to forego statehood and merge with another state that has the capacity to administer the maritime spaces of the now submerged state.123 An amalgamation between the two countries will result in the maritime territories enjoyed by the SIDS being passed to the host state, creating a larger country with a command over greater resources and an increased ability to safeguard any maritime estate that may be located far from its land territory. Thus, it becomes extremely important for SIDS to retain control over their maritime estates, which they can use as a bargaining tool in negotiations over the modalities of a merger, should the need arise.124 A suggestion to allow states like the Maldives to retain their statehood is to provide for the creation of de-territorialised states125 or “sui generis international persons.”126 In other words, states may retain statehood by functioning from the land territory of other states. A closely related idea is that of a

123 Rayfuse, “International Law”, supra note 113 at 8 & 9; see also Schofield, “Shifting Limits?”, ibid. at 415. 124 Rayfuse, “International Law”, ibid. at 12. 125 Ibid. at 10. 126 Freestone, supra note 101 at 116.

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“government-in-exile.”127 In articulating the functions of such entities, Rayfuse observes:128 [i]n the context of disappearing states, the deterritorialised state entity would . . . consist of a ‘government’ or ‘authority’ elected by the registered voters of the deterritorialised state. In essence, this ‘authority’ would act as a trustee of the assets of the state for the benefit of its citizens wherever they might now be located. The maritime zones of the disappearing state would continue to inure to and be managed by that ‘authority’ such that the resource rents from their exploitation could be used to fund the relocation and continued livelihood of the displaced population—whether diasporic or wholly located within one other ‘host’ state. Although not having sovereignty over its new property acquisitions the ‘authority’ would continue to represent the state at the international level and the rights and interests of its citizens vis-à-vis their new ‘host’ state or states. These rights could include the right to maintain their original personal, property, cultural, linguistic and nationality rights for themselves and their descendants while simultaneously being granted full citizenship rights in the new ‘host’ state or states. However, it is doubtful how far and to what extent these entities can protect their citizens’ rights. There is a strong possibility that these countries may remain as states de jure and not de facto.129 Another solution to the territory conundrum is for the disappearing state to buy new territory in another state, which is what the Maldives and Tuvalu are trying to do.130 The transaction can be concluded via a treaty of cession, which will transfer sovereignty over the ceded land to the disappearing state.131 Upon conclusion of the sale, the disappearing state can relocate its population to the new territory.132 While it is unlikely that a state may willingly sell a part of its territory to another, there is still a possibility that land-surplus nations may, on altruistic considerations, be willing to forgo a part of their land 127 Rayfuse, “International Law”, supra note 113 at 10–11. 128 Ibid. at 11. 129 UNHCR Climate Change, Natural Disasters and Human Displacement: A UNHCR Perspective, UNHCR [nd] at 5, online: UNHCR . 130 Rayfuse, “International Law”, supra note 113. 131 Selma Oliver, “A New Challenge to International Law: The Disappearance of the Entire Territory of a State” (2009) 16 Int’l J Mar & Coast L 209 at 238–39 (HeinOnline) (referring to several such sales and gifts of land territory between states); see also Rayfuse, “International Law”, ibid. at 7. 132 Rayfuse, “International Law”, ibid.

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territory to accommodate the people of sinking countries, particularly since these nations are not the ones who have contributed to the phenomenon.133 However, relocating people to distant lands may not be ideal, so the re-location should preferably be to areas that are geographically close to where their islands once stood. While international law cannot compel a state to donate or sell part of its land territory,134 international financial support can be provided to enable countries to purchase alternative land and to re-establish viable communities.135 Purchase of territory seems to be the best possible solution in the circumstance, as it enables continuity of statehood, citizenship, and preservation of cultural heritage. While the above mentioned solutions are basically legalistic in nature, a range of practical and engineering-based solutions have also been suggested to protect the interests of disappearing states and those that are fast losing their coastal frontage. One important suggestion in this regard is the construction of artificial islands, such as the Hulhumalé in the Maldives.136 This artificial island, built on a reclaimed lagoon, is two meters above sea level.137 Even though states do have rights to construct artificial islands, the legal position under the LOSC is that artificial islands are unable to generate the necessary maritime zones, except certain safety zones around them, which is also not more than 5,000 meters.138 Consequently, it has been suggested that the LOSC be amended to provide legal status to these artificial structures.139 Even then, whether artificial islands are a practical solution in the long-run is moot. Artificial structures pose a host of environmental problems. They have been found to aggravate erosion in other areas. Moreover, whether they can sustain human habitation and withstand battering from storms and surges, king tides, etc. is also doubtful. Such structures can also adversely impact the economic mainstay of island countries, as tourists flock to these islands primarily to enjoy the pristine beauty of beaches and reefs. Artificial concrete structures can repel tourists, detrimentally affecting the economy of these regions.140 133 Ibid. at 8. 134 Oliver, supra note 131 at 238. 135 Rayfuse, “International Law”, supra note 113. 136 See Housing Development Corporation, Introduction, online: Housing Development Corporation, Introduction . 137 Gagain, supra note 75 at 119; Simon Gardner, “New Maldives Island Rises From The Depths” Rense.com (14 April 2012), online: Rense.com . 138 LOSC, supra note 66, arts. 60 & 80. 139 See generally Gagain, supra note 75. 140 Lilian Yamamoto & Miguel Esteban, “Vanishing Island States and Sovereignty” (2010) 53 Ocean & Coastal Mgmt 1 at 7 (ScienceDirect).

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Creation of artificial islands may be a temporary solution, but ultimately, they may prove futile, given the fast pace at which the sea is rising and other changes in the oceanic environment. Continuance of life on these islands will become extremely difficult and ultimately relocation may be required. An important suggestion toward preserving basepoints is to protect or armor the coastlines.141 Currently under the LOSC, outermost permanent harbor works, such as jetties, piers, quays, wharves, breakwaters and seawalls142 are treated as part of the coast and can be used to delimit the territorial sea.143 In addition, coast protective and land reclamation works144 are also treated as part of the coast.145 Even though armoring can be expensive, it has the advantage of being able to maintain the status quo, at least for the foreseeable future. Nevertheless, hard armoring also has several environmental pitfalls. While their construction has been found to arrest erosion in one part of the coast, the erosion may be magnified in other areas, as these affect the littoral drift.146 Again, the construction of hard structures like storm walls may end up preventing the natural inland migration of wetlands, ultimately leading to their loss and thereby negatively impacting the livelihood of artisanal fishers.147 In certain situations, soft armoring measures like beach nourishment and mangrove and wetland conservation may prove more useful and environmentally friendlier.148 However, there are limitations to utilizing soft armoring measures as well, and, therefore, the choice of a measure aimed at the physical protection of the coastlines, including basepoints, should be decided as part of a more comprehensive strategy targeted towards intelligent coastal management. It is in this context that ICZM assumes relevance, as it provides a practical opportunity to implement coastal armoring as part of a larger and composite package towards sustainable coastal development (SCD). 141 Freestone, supra note 101 at 117–22. 142 ILA, Sofia Conference, supra note 73 at 26. 143 LOSC, supra note 66, art. 11. 144 ILA, Sofia Conference, supra note 73 at 27. 145 Ibid. at 28; Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v Singapore), 12, Order (8 October 2003) at 23 (International Tribunal for the Law of the Sea). One of the key concerns of Malaysia in relation to the land reclamation by Singapore was that, “a reconfiguration of Singapore’s coasts would functionally and legally extend Singapore’s baseline seaward to Malaysia’s disadvantage in a delimitation of maritime spaces between the opposite states”. ILA, Sofia Conference, ibid. 146 Dronkers et al., eds, supra note 49 at 9. 147 See generally Sudarshan Rodriguez et al., Policy Brief: Seawalls (UNDP/UNTRS: Chennai & ATREE: Bangalore, 2008). 148 Dronkers et al., eds, supra note 49 at 9.

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Impact of Climate Change and Sea Level Rise on Coastal Communities

In 2005, the Inuit in the Arctic petitioned the Inter-American Commission on Human Rights for relief against human rights violations guaranteed under the American Declaration of the Rights and Duties of Man.149 These violations were occasioned by the “acts and omissions” of the United States which contributed overwhelmingly to the GHGs that warmed the atmosphere, leading to climate change.150 The specific averments emphasized that the tranquil life and culture of the Inuit were being harmed.151 The primary petition was to declare that the United States is “internationally responsible for violations of rights”152 and to recommend that the United States adopt mandatory measures to limit its GHGs emissions.153 The petition was dismissed on the grounds of insufficiency of information to prove alleged facts.154 The grievances of the Inuit are not unique. Coastal communities in South Asia, like the Meenavar in India, the Mukkuvar in Sri Lanka, Jaladash in Bangladesh, Mohana in Pakistan, and the fishing communities in the Maldives are also feeling increasingly threatened by climatic changes and SLR,155 and several have had to migrate to other regions.156 One of the gravest impacts of climate change is that it will uproot millions of residents, leading to their displacement and consequent migrations. In 2008, it was estimated that “sudden-onset natural disasters,” displaced nearly 36 million people and that of these, more than 20 million were displaced by “sudden-onset climate-related disasters.”157 In contrast, in the same year, the total population of people (both 149 Inuit Petition, supra note 1 at 28. 150 Ibid. at 103. 151 Native Village of Kivalina v ExxonMobil Corp, 663 F Supp (2d) 863 (ND Cal, 2009). 152 Inuit Petition, supra note 1 at 118. 153 Ibid. 154 Letter from Ariel E. Dulitzky, Assistant Executive Secretary, Inter-American Commission on Human Rights (16 November 2006) online: The New York Times . 155 For instance, see Inam Ahmed, “Climate bell tolls: Livelihood changes with weather”, The Daily Star [of Dhaka] (7 December 2009) online: The Daily Star . 156 For instance, see generally Mirjam Macchi, “Indigenous and Traditional Peoples and Climate Change”, Issues Paper (IUCN, March 2008). 157 See generally OCHA, IDMC & NRC, Monitoring Disaster Displacement in the Context of Climate Change: Findings of a Study by the United Nations Office for the Coordination of Humanitarian Affairs and the Internal Displacement Monitoring Centre (Switzerland, United Nations Office for Coordination of Humanitarian Affairs, 2009).

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internally displaced and refugees) living in forced displacement due to conflict was 42 million, with 4.6 million newly internally displaced during that year.158 In 2009, 16.7 million people were newly displaced by sudden-onset disasters (out of which 15.2 million were displaced due to climate related disasters),159 and in 2010, the figure was 42.3 million people (out of which 38.3 million were victims of climate disasters).160 It is estimated that by 2050, the number of people who will be forced to move out due to climate change will range between 25 million to one billion.161 While droughts, desertification and food shortages can trigger migrations and cross-border movements;162 the problem will be particularly acute in low elevation coastal zones. Although these areas constitute only 2.2 per cent of dry land, they hold nearly 10.5 per cent of the world’s population.163 Even more worrying is the fact that the problem of climate change-induced migrations will almost exclusively be a developing country crisis not only because of the huge populations that live on their coasts but because of the countries’ low adaptive capacity, widespread poverty, and lack of good governance.164 One of the major theatres where the problems of climate change displacement will be played out in its extreme is South Asia. The IPCC estimates that a one-meter rise in sea level will put nearly 125 million people at risk, three quarters of whom live in East and South Asia, and it is these people who will need re-settlement.165 Another study points out that 146 million people live at an altitude of less than one meter on the banks of major rivers, deltas and estuaries, and in the flood zones in South Asia (Indus, Ganges-Brahmaputra, etc.) 158 “Summary”, in ibid.; see also ibid. at 10. 159 IDMC & NRC, Displacement Due to Natural Hazard-Induced Disasters Global Estimates for 2009 and 2010 (Switzerland: Internal Displacement Monitoring Centre, 2011) at 8, 9. 160 Ibid. at 11. 161 IOM, Frank Laczko & Christine Aghazarm, eds, Migration, Environment and Climate Change: Assessing the Evidence (Geneva: IOM, 2009). If global temperatures rise by four to five degree Celsius, in the Indian subcontinent, 125 million people will be uprooted, out of which 75 million will be from Bangladesh and the rest from India. See generally Sudhir Chella Rajan, Blue Alert: Climate Migrants in South Asia: Estimates and Solutions—A Report by Greenpeace (Greenpeace India Society, 2008). 162 See generally Warner et al., supra note 93. 163 Etienne Piguet, “New Issues in Refugee Research: Climate Change and Forced Migration”, PDES Working Papers (Research Paper No. 153, 2008) at 7. 164 Jon Barnett & Michael Webber, “Migration as Adaptation: Opportunities and Limits” in Jane McAdam, ed., Climate Change and Displacement Multidisciplinary Perspectives (Oxford and Portland, Oregon: Hart Publishing, 2010) 37 at 38, 55. 165 Ibid.

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and East Asia (Mekong, Yangtze, Pearl River, etc.).166 These two regions account for nearly three quarters of the population at risk.167 In extreme cases, entire populations of coastal countries, like the Maldives, will need to be relocated. In general, climate-change-displaced populations can be classified into two types. The first and largest type consists of people who will be displaced internally (i.e., within their national boundaries) by climate change-related phenomena.168 The second type comprises people who will be forced to cross international borders.169 This category includes the inhabitants of SIDS like the Maldives170 and countries like Bangladesh, where land and resources are already stretched to the limit and are therefore unable to accommodate huge influxes of people.171 This classification is pertinent to determining the nature of problems and the rights available to both groups under international law. Another aspect that warrants mention is that climate change and SLR lead to two potential situations that will impair the stability, sustainability, and continuity of coastal settlements. The first situation is the slow-onset disaster of SLR and consequent inundation of coastal land. This is a steady and gradual process of degradation of the coastal environment, forcing people to move out of their homes over a period of time.172 While the impact is direct, there is scope to implement adaptation actions which will help to reduce and control these impacts to some extent. The chances that the adaptation measures will succeed depends on a host of factors, including the socio-economic capacity of the affected populations to absorb the impact, the timing and implementation of the measures, and the degree of intelligent planning (i.e., integrating adaptation into the broader coastal management scheme).173 If the adaptation measures fail to produce results, relocation, resettlement, and rehabilitating coastal communities are the only options. 166 Piguet, supra note 163 at 8. 167 Ibid. 168 UNHCR Climate Change, Natural Disasters, supra note 129 at 2. 169 Barnett & Webber, supra note 164 at 40. 170 For more details on the geography of the Maldives, see Maldives, Ministry of Environment and Energy, State of the Environment 2011 (2011) at 22 [Maldives, State of the Environment 2011]. 171 “UK should open borders to climate refugees, says Bangladeshi minister”, TheGuardian (4 December 2009) internet video: theguardian, online: theguardian . 172 Walter Kälin, “Conceptualising Climate-Induced Displacement” in Jane McAdam, ed., Climate Change and Displacement: Multidisciplinary Perspectives (Oxford and Portland, Oregon: Hart Publishing, 2010) 81 at 85. 173 For more discussion on climate change adaptation, see ch. 5.

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The second situation that interacts with climate change and SLR is the occurrence of intense disasters like severe storm surges, hurricanes, tsunamis and earthquakes, which can devastate coastal regions and cause widespread upheaval.174 Although not directly attributable to the climate change phenomenon, such events will be greatly aggravated by climate change and SLR as these will significantly reduce the ability of coastal communities and ecosystems to cope with intense natural disasters. Moreover, ongoing SLR and climate change will weaken coastal infrastructure and affect the resiliency of coastal ecosystems, rendering them more vulnerable to sudden ‘acts of God.’ It must be pointed out that this important classification, based on the degree of possible impacts, can also be examined from the perspective of the continued availability of land, the basic resource necessary to support human habitation. The first is the worst-case scenarios as in the case of sinking SIDS where SLR and climate change can ultimately lead to a situation of deterritorialziation, displacement, statelessness and eventual crossing of international borders.175 The second contemplates situations where the impact of the climate hazards and SLR are extremely severe and land degradation and water contamination is very high. Even if coastal frontage is lost to the rising waves, there is still the possibility of utilizing land available inland for rehabilitation.176 As well, there is the possibility that through appropriate adaptation measures (anticipatory and reactive),177 land-use178 and water management

174 “Summary for Policymakers” in Climate Change 2007, supra note 7 at 2. 175 W. Neil Adger, Shardul Agrawala & M. Monirul Qader Mirza, “Assessment of Adaptation Practices, Options, Constraints and Capacity” in M.L. Parry et al., eds, Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 717 at 736. 176 For instance, Bangladesh is one of the most densely populated nations in the world, and land is scarce. Nevertheless, through a right mix of adaptation strategies, land use and water management, up-land areas may still be able to accommodate displaced coastal populations. Jane McAdam, “Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer” (2011) 23:1 Int’l J Refugee L 2 at 12 [McAdam, “Swimming”]. 177 For an overview of the different adaptation strategies, see generally Jessica Grannis, Adaptation Tool Kit: Sea-Level Rise and Coastal Land Use (Georgetown Climate Center, 2011). 178 “Floating Gardens in Bangladesh”, Practical Action: Technology Challenging Poverty: Technical Brief, online: FAO .

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strategies179 the degraded land can be nursed back to continue to support human habitation. Migration and re-settlement can be an overwhelming experience. In many cases, the displaced peoples have very limited coping and adaptive capabilities, as their economic resourcefulness derives from subsistence agriculture, artisanal fishing, traditional aquaculture, and community-based forest management.180 They do not have the economic capacity to finance international migration to a wealthier country.181 In other words, these are communities whose existence is dependent on and intertwined with the ecosystem goods and services available in a particular region, and so it is often the case that they prefer not to move at all, unless it is absolutely necessary.182 Certainly, for them, international migration will be a last resort. Technically, the groups that migrate and move within a country may be able to access the guarantees contained in the UN Guiding Principles on Internal Displacement, 1998, which defines internally displaced persons to include those displaced by “natural or human-made disasters.”183 The Guiding Principles on Internal Displacement is a normative framework that provides 179 R.F. Michael Snodgrass, Note, “The Reuse of Household Water: A Small Step Toward Sustainable Living and Adaptation to Climate Change” (2010) 22 Geo. Int’l Envtl L Rev 591 (QL) (advocating the widespread use of grey water); J. Mwenge Kahinda, A.E. Taigbenu & R.J. Boroto, “Domestic Rainwater Harvesting as an Adaptation Measure to Climate Change in South Africa” (2010) 35:13–14 Physics & Chemistry of The Earth Parts A/B/C 742 (ScienceDirect) (listing rainwater harvesting as a specific adaptation measure for water-stressed Africa); see generally World Water Assessment Programme, Managing Water under Uncertainty and Risk, vol. 1, The United Nations World Water Development Report 4 (Paris: UNESCO, 2012) at 66. 180 In the aftermath of the Indian Ocean tsunami, the south Indian state of Tamil Nadu constructed several permanent and solid houses for displaced residents. However, the majority of the housing was based in alternative sites. Coastal communities, however, wanted ‘in-situ’ houses as they feared that they would lose their customary rights and their right to livelihood. National Peoples’ Tribunal on Post-tsunami Rehabilitation: Housing, Land, Resources and Livelihoods 18 and 19 December 2008, Chennai: Interim Verdict of the Jury, at 5, 9, online: Habitat International Coalition [National Peoples’ Tribunal]. 181 In Bangladesh only five per cent of the flood affected rural households can afford to send people abroad. McAdam, “Swimming”, supra note 176 at 11–12; see also Barnett & Webber, supra note 164 at 41–42. 182 National Peoples’ Tribunal, supra note 180. 183 UNESC, Report of the Representative of the Secretary-General, Mr. Francis M. Deng, Submitted Pursuant to Commission Resolution 1997/39: Addendum: Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2, 11 February 1998, ¶2.

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guidance to states on all aspects of internal displacement.184 Essentially, it is a “restatement of existing norms” and addresses “the specific needs of internally displaced persons worldwide by identifying rights and guarantees relevant to their protection”185 from the time of “forced displacement,” “during displacement,” and during their return, “resettlement and reintegration.”186 Interestingly, many of the principles enshrined in the Guiding Principles are recognized by the national constitutions and jurisprudence in South Asian coastal countries.187 Though this document is accepted by many nations, it has no legal consequence and therefore its implementation is waning.188 Many climate-change-displaced people who have crossed international borders often find themselves in legal ‘twilight zones.’ This raises the issue of how they should be referred to, and whether the international legal regime on refugees is applicable to them. Descriptive terms such as “environmental refugees,”189 “climate change refugees,”190 and “environmental migrants”191 have been coined to label those who cross international borders due to climate-change-related factors.192 However, the Office of the United Nations High Commissioner for Refugees has serious reservations about the use of such terms. The office thinks that these terms have no foundation in international refugee law:193

184 Ibid., introductory note, ¶5. 185 Ibid., ¶9. 186 Ibid., annex, ¶1. 187 For instance, during displacement, internally displaced persons retain the right to life under law. Ibid., annex 1, s. 3, prin 10. The right to life is guaranteed by the constitutions of India (art. 21), Bangladesh (art. 32), Pakistan (art. 9), and the Maldives (art. 21). 188 Francis Mading Deng, “The Global Challenge of Internal Displacement” (2001) 5 Wash UJL & Pol’y 141 at 147 (QL); see also Roberta Cohen, Statement, “Hardening Soft Law: Implementation of the Guiding Principles on Internal Displacement” (2008) 102 Am Soc Int’l L Proceedings 187 at 189 (HeinOnline). 189 See generally Silke Marie Christiansen, Environmental Refugees: A Legal Perspective (Nijmegen: Wolf Legal Publishers, 2010). 190 Tiffany T.V. Duong, “When Islands Drown: The Plight of “Climate Change Refugees” and Recourse to International Human Rights Law” (2010) 31 U Pa J Int’l L 1239 at 1250 (HeinOnline). 191 Ninety-Fourth Session: Discussion Note: Migration and the Environment, MC/INF/288, 1 November 2007, ¶6 at 1, online: International Organization for Migration . 192 Kälin & Schrepfer, supra note 93 at 27–8. 193 UNHCR Climate Change, Natural Disasters, supra note 129 at 8.

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[w]hile often used, particularly in the media, it would be incorrect to give the words a legal meaning that has not been endorsed by the legal community. UNHCR is actually of the opinion that the use of such terminology could potentially undermine the international legal regime for the protection of refugees whose rights and obligations are quite clearly defined and understood. . . .194 At the 2011 Nansen Conference, the legal incorrectness associated with the terms climate refugees and environmental refugees was again decried. Instead, “environmentally displaced persons” found more favor.195 However, it is submitted that “environmentally displaced persons” also suffers from the same inconsistencies that plague the other terms, in that it fails to relay the nuances between internal and external migrations in situations where climate change is the causative factor for the migration. In short, there is not yet an appropriate nomenclature to describe these groups, and to reflect the essence of the problems that they face, their entitlements and aspirations. As far as the second issue is concerned, coming as it does on the heels of the Universal Declaration on Human Rights, 1948, the Refugee Convention of 1951 is the sole binding human rights instrument that affords protection to refugees by guaranteeing them ‘rights.’ Central to the application of the refugee regimes is: who qualifies for refugee status: As “[a] term of art. in international law,”196 a refugee, under the 1951 Refugee Convention, is someone who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.197

194 Ibid. at 8–9. 195 The Nansen Conference: Climate Change and Displacement in the 21st Century, Oslo, Norway, June 5–7, 2011 (Norwegian Refugee Council, 2011) at 19. 196 UNHCR, UNHCR and Climate Change: Involvement, Challenges & Response, online: UNHCR . 197 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art. 1(A)(2).

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If a person meets the specifics of this definition, then the Refugee Convention applies and the refugee is immediately clothed with extensive legal protection, including the right not to be forcibly repatriated to the home state, which s/he has fled in the first place (principle of non-refoulement) due to threats to life or freedom.198 Therefore, it is necessary to examine whether those who are displaced by climate-change-related phenomenon like SLR and have crossed international borders into another state can claim refugee status.199 The first element in this definition is that of persecution. Proving persecution in the context of SLR requires more than legal ingenuity, for it is practically impossible to treat climate change impacts as persecution on the grounds of race,200 religion,201 nationality, membership of a particular social group202 or political opinion.203 Secondly, it is also not possible to pinpoint a persecutor. The governments of the island states of the Maldives, Kiribati, or Tuvalu are not persecutors in that they are not responsible for climate change or SLR, as their carbon footprint is practically negligible.204 It could then be argued that since industrialised countries are the primary emitters of GHG emissions that have precipitated the present problem, these countries may emerge as the persecutors. But then the irony is that rather than fleeing from the alleged persecutor, the inhabitants of most of these countries are seeking shelter with the persecutor.205 In other words, the new dynamic turns the refugee regime on its head. 198 Ibid., art. 33(1). 199 See generally Tony George Puthucherril, “Climate Change, Sea Level Rise and Protecting Displaced Coastal Communities: Possible Solutions” (2012) 1 Global J Comp L 225. 200 Singh v Canada (Minister of Citizenship and Immigration), 2007 FC 1296, 68 Imm LR (3d) 131. 201 Fosu v Canada (Minister of Employment and Immigration) (1994), 90 FTR 182, [1994] FCJ 1813; Yang v Canada (Minister of Citizenship and Immigration), 2001 FCJ 1463 (TD). 202 Cheung v Canada (Minister of Employment and Immigration), (1993) 2 FC 314 (CA); TZU (Re), (2002) RPDD 174. 203 Barima v Canada (Minister of Employment and Immigration), (1994) 1 FC 30 (TD); Canada (Attorney General) v Ward, [1993] SCJ 74. 204 Duncan Clark, “Maldives first to go carbon neutral”, The Guardian (15 March 2009) online: theguardian ; “Tuvalu vows to go carbon neutral”, BBC News (20 July 2009) online: BBC News . 205 Jane McAdam, Climate Change Displacement and International Law Climate Change Displacement and International Law: Side Event to the High Commissioner’s Dialogue on Protection Challenges, 8 December 2010, Palais des Nations, Geneva, online: UNHCR .

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In sum, a prima facie analysis of the definition leads to the inescapable conclusion that those displaced by climate change and who have crossed international borders are disqualified from claiming benefits under the Refugee Convention and its Protocol.206 Overwhelming academic opinion comports with the view that the Refugee Convention is inapplicable to climate refugees.207 However, this does not mean that the Refugee Convention is not applicable at all, as there can be situations when this convention can be applied to those who are displaced by climate change.208 As far as the coastal South Asian region is concerned, the problem of climate related displacement is significant. For instance, given the high probability that the rising seas will swallow the archipelago of the Maldives,209 it is generally believed that Maldivians will migrate elsewhere within the South Asian region due to cultural affinities. Here, India and Sri Lanka may emerge as potential destinations.210 It is also presumed that the bulk of the displaced people from Bangladesh will migrate to India.211 Already saddled with its own climate-displaced population, India will experience an enormous strain on its resources. Interestingly, none of the South Asian coastal countries are parties to the 1951 Refugee Convention and its related Protocol, nor do they individually have any concrete legal standards or norms for refugee protection.212 It can, 206 Ibid. 207 For instance, see Tiffany T.V. Duong, “When Islands Drown: The Plight of “Climate Change Refugees” and Recourse to International Human Rights Law” (2010) 31 U Pa J Int’l L 1239 (HeinOnline). 208 The protection under the Refugee Convention will be available where the victims of natural disasters flee if the government consciously withholds or obstructs assistance to punish or marginalize a group on any one of the five grounds. UNHCR, Submission: Forced Displacement in the Context of Climate Change: Challenges for States under International Law, Paper, 6th Session of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention (AWG-LCA 6) from 1 Until 12 June in Bonn (19 May 2009) at 9–10. 209 UNDP, Human Development Report 1999: Overcoming Barriers: Human Mobility and Development (New York: Oxford University Press, 1999) at 45. 210 Prabodh Saxena, “Creating Legal Space for Refugees in India: The Milestones Crossed and the Roadmap for the Future” (2007) 19:2 Int’l J Refugee L 246 at 247, 248; see also Kälin & Schrepfer, supra note 93 at 18. 211 Rajan, supra note 161 at 1. 212 Even though the inflow of refugees into India began with partition, India is not as yet a party to the 1951 Convention or the 1967 Protocol and has not legislated on this subject. Refugee protection flows primarily from the judicial process, which has extended many constitutional provisions to refugees. Chairman, Railway Board v Chandrima Das, (2000) [2000] (2) SCC 465 (India SC); Ktaer Abbas Habib Al Qutaifi v India, (1998) [1998]

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in fact, be concluded that climate-change-displaced persons in South Asia who may be forced to cross international borders are in a state of suspended animation vis-à-vis their legal status, due mainly to the legal vacuum at the international and national levels. Therefore, it is possible that migrants who cross international borders seeking refuge in other South Asian countries may be subjected to severe human rights abuses, unless and until legal arrangements are put in place to secure their rights. Already there have been several instances of conflict between the local population and the so-called illegal immigrants in India.213 As detailed in the next chapter, in most of the South Asian coastal countries, development generally proceeds without heed to embed climate change adaptation measures (particularly, coastal climate change adaptation (CCCA)) within developmental strategies. Decades of investment have already gone into developing coastal settlements and infrastructure. It must also be noted that, in most cases, salinity ingress, rising sea levels, extreme weather events and disasters are not the primary causes of displacement. These are factors that emerge as the final trigger to exacerbate existing conditions of poverty, vulnerability, and substandard living.214 Because climate change merely compounds existing vulnerabilities, it is necessary that coastal planning and management in these countries deal with basic socio-economic issues like poverty removal, reversing environmental degradation and improving adaptive capacities.215

INDLAW Guj 69 (Gujarat HC); Arunachal Pradesh v Khudiram Chakma, (1994) [1994] Sup (1) SCC 615 (India SC). 213 Thousands of illegal immigrants are entering India from Bangladesh almost on a daily basis through the porous borders on the eastern front, and this has led to the outbreak of riots, between the indigenous and migrants. See Sanjib Kr Baruah, “Illegal migrants turn Assam into drug hub” Hindustan Times [of India] (20 August 2012) online: hindustan­times ; but see Banajit Hussain, “Riots & the bogey of Bangladeshis” The Hindu [of India] (8 August 2012), online: The Hindu . For more details, see Arpita Bhattacharyya & Michael Werz, “Climate Change, Migration, and Conflict in South Asia Rising Tensions and Policy Options across the Subcontinent” (3 December 2012), online: Center for American Progress . 214 Brendan Gogarty, “Climate-change Displacement: Current Legal Solutions to Future Global Problems” (2011) 21:1 JL Information & Sci 167 at 179 (HeinOnline); McAdam, “Swimming”, supra note 176 at 14–15. 215 In Bangladesh, poverty removal is an integral part of its ICZM process. For more discussion on this topic, see ch. 3.

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In sum, climate change and SLR are realities that are upon us, which will profoundly impact the lives and basic rights of millions of coastal residents all over South Asia and beyond. As it presently stands, the international instruments that provide a semblance of protection to the rights of the climate change displaced are caught in a time warp; they have not developed according to changing environmental and societal needs. Even at the national levels in the South Asian region, the basic human rights of the climate displaced are not adequately protected. It is apparent that since those who cross international borders to flee from their sinking homes do not fall within the ambit of the traditional legal framework on refugee protection, their legal status remains in limbo.216 Even more worrying is the fact that we do not have an appropriate and internationally agreed upon terminology to describe them, as the term climate-change refugee is seen as a misnomer.217 This situation persists even though, in a matter of decades, vast swathes of coastal regions may be inundated by seawater and entire nations may be displaced. As mentioned earlier, in worst-case scenarios, the sea rises to inundate and flood the coast, and land can be permanently lost, leading to displacement. Nevertheless, certain adaptation actions may hold back the water for a while depending on the success of mitigative actions. Conversely, in other situations, coastal lands and associated ecosystems may be nursed back to health and reclaimed, as was the case after the 2004 tsunami.218 But here, the rehabilitation must be planned in such a way that if disaster were to strike again, coastal communities would not be put at unnecessary risk. In light of the foregoing, the need for intelligent planning towards CCCA, relief and rehabilitation gains importance. CCCA in the context of climate related displacement including SLR involves a three-pronged effort: first, it contemplates measures that directly aim to adapt to climate change impacts including SLR by reinforcing corroding coastlines and sinking islands. Second, it seeks to improve the economic and adaptive capacities of coastal populations so that they are better enabled to absorb the impacts of climate change hazards and related shocks. Third, it seeks to enhance the resilience of coastal ecosystems. And here, as subsequent chapters explain, appropriate CCCA actions can be implemented via ICZM, serving to slow down or reduce the extent of migrations in the long run.

216 See generally Part 2.4, above, for more details. 217 For a discussion on terminology and related classifications regarding climate displaced, see ibid. 218 Kälin, supra note 172.

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Climate Change Impacts on Coastal Resources and Ecosystems

The ocean space and marine resources adjacent to coastal states and coastal resources per se are rife with economic and development opportunities. However, SLR and other climate change processes can severely impact coastal resources such as groundwater, coral reefs, and coastal wetlands, particularly, mangrove forests that are highly essential to the well-being of South Asian coastal communities. 2.5.1 Impacts on Coastal Aquifers In adopting the UN Millennium Declaration, the nations resolved “[t]o halve, by the year 2015, the proportion of the world’s people who are unable to reach or to afford safe drinking water.”219 Though vast distances have been covered and substantial improvements achieved in securing universal access to potable water,220 climate change threatens to hinder further progress. In October 2011, the island state of Tuvalu declared a state of emergency due to dwindling water supplies.221 A lack of rainfall nearly dried out the island and the situation was made worse by rising sea levels, which led to increased salinity intrusion. In response, New Zealand airlifted water containers and desalinization plants to Tuvalu to tide over the crisis.222 A state of emergency over dwindling water supplies was declared in Tokelau as well.223 Coastal aquifers are shallow and sandy and remain in close contact with the sea, rendering them highly vulnerable to pollution in comparison to hard rock aquifers.224 As the seas begin to rise, most coastal aquifers are at risk of 219 United Nations Millennium Declaration, GA Res 55/2, UNGA, UN Doc A/55/L2 (2000) ¶19. 220 United Nations, The Millennium Development Goals Report 2010 (New York: United Nations, 2010) at 58–59. 221 “Tuvalu declares emergency over water shortage”, BBC News (3 October 2011) online: BBC News . 222 “Tuvalu: state of emergency declared over water shortages”, The Telegraph (3 October 2011) online: The Telegraph . 223 “South Pacific water shortage hits Tokelau”, BBC News (4 October 2011) online: BBC News . 224 A two to three per cent mixing with seawater renders freshwater unfit for human consumption and irrigation and a four per cent mix can destroy the resource. FAO, Seawater Intrusion in Coastal Aquifers: Guidelines for Study, Monitoring and Control, Water Reports No. 11 (Rome: FAO, 1997) at 7.

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salinization.225 What compounds the problem is the increasing abstraction of groundwater at rates over and above sustainable yield levels.226 Reduced precipitation and increasing urbanization also affects recharge possibilities. Additionally, extreme weather events and intense storms lead to overtopping, contaminate freshwater lenses, open dug wells and other water sources.227 The persistence of such conditions can produce a host of problems, such as a drop in the water table, aquifer collapse, land subsidence and salinity intrusion.228 The IPCC observes that “[m]ost measures to compensate and control the salinisation of coastal aquifers are expensive and laborious.”229 To date, international water law has paid only scant attention to this resource, focusing instead on surface water rights and its management.230 In most cases, 225 For instance, see Egypt, Egypt Second National Communication under the United Nations Framework Convention on Climate Change (Cairo: Egyptian Environmental Affairs Agency, 2010) at 74. 226 For example, the groundwater levels of the Khobar zone of the Dammam transboundary aquifer have plummeted to such low levels that it now stands below the mean sea level. Bahrain, Public Commission for the Protection of Marine Resources, Environment and Wildlife, Bahrain’s Second National Communication under the United Nations Framework on Climate Change (Bahrain, 2012) at 33 [Bahrain, Bahrain’s Second National Communication]. 227 UNEP, Maldives: State of the Environment 2002 (UNEP, 2002) at 31 [UNEP, Maldives]. 40,000 drinking water wells were either destroyed or contaminated as a result of the tsunami of 2004. Tissa Illangasekare et al., “Impacts of the 2004 Tsunami on Groundwater Resources in Sri Lanka” (2006) 42 Water Resources Research 1. 228 Georgetown is subsiding at a rate of about 10 millimeters per year due to groundwater “mining”. Guyana, Guyana Initial National Communication in Response to its Commitments to the UNFCCC (2002) at 94 [Guyana Initial National Communication]. 229 Nicholls & Wong, supra note 32 at 342. 230 UN: Convention on the Law of the Non-navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700 (deals with transboundary aquifers). Even though the term groundwater finds mention in United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 1994 (UNCCD) only once where “salinization and exhaustion of aquifers” is mentioned in the context of Northern Mediterranean justifying the need for an Annex (Annex IV, article 2 (f)), several of its provisions are wide enough to contemplate groundwater management. 21 September 1994, 33 ILM 1328 (adopted 17 June 1994); see also ibid., art. 10(2)(d) (enhancement of national hydrological capabilities and development of sustainable irrigation programmes). In addition, soft law instruments also emphasize groundwater management. The Dublin Statement on Water and Sustainable Development, 31 January 1992 (International Conference on Water and the Environment, Dublin, Ireland) online: UN Documents . Chapter 18 of Agenda 21 states, “protection of groundwater is . . . an essential element of water resource

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these instruments apply only to transboundary groundwater aquifers.231 This implies that groundwater management is essentially a domestic matter within the purview of national regulations. In most coastal regions of South Asia, there is an overwhelming dependence on groundwater as a primary source of potable water.232 However, salinity intrusion into coastal aquifers is a major problem aggravated by overextraction.233 For instance, in India, salt-water intrusion has been reported from the coastal state of Tamil Nadu, the union territory of Pondicherry and from the Saurashtra region in Gujarat state.234 Salinity intrusion has been reported from the coastal city of Karachi in Pakistan.235 In coastal Bangladesh, approximately 20 out of 37 million people living on the coasts (over 57 per cent) are adversely affected by salinity in their drinking water, and a majority of these people depend solely on groundwater to meet their basic needs.236 In the Maldives, freshwater lenses lie atop salt water and as the sea level rises, salt water penetrates the freshwater lens, leading to contamination. Due to the peculiar geographical features of these islands, sewage contamination of management”. Nicholas A Robinson, ed., Agenda 21 & The UNCED Proceedings, vol. 4, 3rd series, International Protection of the Environment (New York: Oceana Publications, Inc, 1993) at 357, ch. 18, ¶18.37. Plan of Implementation of the World Summit on Sustainable Development, 2002, talks about mitigating the effects of groundwater contamination by establishing, inter alia effective legal frameworks at the national level. “Plan of Implementation of the World Summit on Sustainable Development” in UN, Report of the World Summit on Sustainable Development Johannesburg, South Africa, 26 August– 4 September 2002, A/CONF.199/20* (New York: UN, 2002) 6 at 21, ¶25(d). 231 Bahrain, Bahrain’s Second National Communication, supra note 226 at 31. 232 For more details, see generally Tushaar Shah, “The Groundwater Economy of South Asia: An Assessment of Size, Significance and Socio-ecological Impacts” in M. Giordano & K.G. Villholth, eds, The Agricultural Groundwater Revolution: Opportunities and Threats to Development, Comprehensive Assessment of Water Management in Agriculture Series No. 3 (Wallingford: CABI Publishing, 2007) 7. 233 David Coates et al., “Water Demand: What Drives Consumption?” in World Water Assessment Programme, Managing Water under Uncertainty and Risk, vol. 1, The United Nations World Water Development Report 4 (Paris: UNESCO, 2012) 44 at 66. 234 Héctor Garduño et al., India Groundwater Governance: Case Study, Water Papers (Water Unit, Transport, Water and ICT Department, Sustainable Development Vice Presidency, 2011) at 10. 235 See generally A. Mashiatullah et al., “Groundwater Salinity in Coastal Aquifer of Karachi, Pakistan (A Preliminary Investigation)” (2002) 7:3–4 Sci Vision 195. 236 Aneire E. Khan & Mikhail I Islam, “Water salinity and maternal health”, The Daily Star [of Dhaka] (5 June 2011) online: The Daily Star .

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groundwater is another major issue.237 While the capital city of Malé has desalinated water, residents in the other islands of the Maldives rely on rainwater for drinking purposes. Despite its poor quality in some of the islands, people have no choice but to use the groundwater.238 A common concern in all these countries is aquifer over-exploitation, overlaid by progressive rise in sea levels. Despite this, groundwater governance in South Asia is poorly organized.239 Under both common and civil law systems, groundwater rights are generally tied to land rights.240 This means that in the language of the law, the term ‘land’ includes water, and groundwater is treated as belonging to the landowner. This is the cornerstone principle on which most groundwater legal regimes are organized and developed.241 Under common law, for instance, groundwater is treated as chattel attached to the land property, on the basis of the ad coleum principle.242 Groundwater rights belong to the landowner. A necessary adjunct is the rule of capture,243 and accordingly none has rights of action against another, who by sinking wells or other works on his/her land, draws off and appropriates the underground water.244 In other words, such actions are treated as a case of damnum absque injuria.245 Many common law countries base their groundwater regimes on the common law approach to land 237 Maldives, State of the Environment 2011, supra note 170 at 88. 238 Ibid. at 84. 239 Attakoya Thangal v India, 1990 (1) KLT 580; see also M.C. Mehta v India, (1997) 11 SCC 312 (India SC); Kerala Ground Water (Control and Regulation) Act 2002 (No. 19 of 2002, India). Even though Bangladesh increasingly relies on groundwater, it is contaminated by naturally occurring arsenic. In 1985, Bangladesh brought out its Ground Water Management Ordinance. However, the operation of this law was suspended to facilitate irrigation expansion. 240 For instance, see art. 552 of the French Civil Code; see also 2 Earl Jowitt’s The Dictionary of English Law 1053 (1959). 241 For instance, Canadian Water Law in line with English common law embodies the rule of absolute capture. Program on Water Governance: Fact Sheet: Groundwater Use Regulation online: Water Governance . 242 Herbert Broom, A Selection of Legal Maxims, Classified and Illustrated (1845) ¶172 (HeinOnline) (“Cujus est solum ejus est usque ad coelom”, means he who possesses land possesses also that which is above it); see also ibid., ¶175. 243 Acton v Blundell (1843), 152 ER 1223 (Ex Ch). 244 Eric Opiela, “The Rule of Capture in Texas: An Outdated Principle Beyond its Time” (2002) 6 U Denv Water L Rev 87 (QL). 245 Tony George Puthucherril & Lekshmi Vijayabalan, “The Law and Practice on Ground Water Conservation and Management—A Case Study with Specific Reference to the State of Kerala” (Paper delivered at the National Workshop on Water Quality Management

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ownership, and the common law countries in South Asia (India, Bangladesh and Pakistan) are no exception to this rule.246 Since only landowners can enjoy groundwater rights, this can, in certain circumstances, prove particularly harsh in countries that have a skewed system of land tenure and where the land rights of traditional coastal fishing communities, pastoral groups, and tribes are based on community-based land ownership. Legally, these groups can be excluded from enjoying ground water rights.247 Moreover, since the rule of capture prevails, landowners enjoy almost unrestricted freedom to mine their water.248 A growing realization of the dangers associated with retaining this inequitable principle has led to its dilution, at least, in India.249 Given the problem of SLR and growing exploitation and contamination of coastal aquifers, it may be necessary to revisit the inequity inherent in the legal principles relating to groundwater rights. A proactive and precautionary approach must be adopted towards groundwater management, particularly of coastal aquifers. This requires, first and foremost, that there be a clear understanding that limits will have to be imposed on the quantity of water that can be extracted. Regulations must be made to ensure distributive justice and sustainable development of the resource. Second, compartmentalization into surface and ground water must give way to a more integrated and holistic approach that combines vertical and horizontal water resources management strategies.250 It has to be understood that there is a close inter-relationship between groundwater and other ecosystems like wetlands and swamps.251 Destruction of such ecosystems can considerably hamper aquifer dynamics. and Conservation: Role of the Legal System, National Law School of India University, Bangalore, 16 August 2002) [unpublished]. 246 This archaic common law principle is embodied in the Easement Acts of India, Pakistan and Bangladesh. For instance, see Indian Easement Act 1882 (No. 5 of 1882, India), s. 7, illustration (g). It outlines the natural rights available to the owner of the land, namely, “[t]he right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel . . . .” See also Easements Act, 1882 (No. V of 1882, Pakistan) s. 7(g); Easements Act, 1882 (No. V of 1882, Bangladesh) s. 7. 247 See generally Puthucherril & Vijayabalan, supra note 245. 248 Ibid. 249 For more details, see supra note 245. 250 The Andhra Pradesh Water, Land and Trees Act, 2002 (No. 10 of 2002, Andhra Pradesh, India). 251 Wetlands share an important and intricate relationship with groundwater. See Resolution IX.1 Annex C ii Guidelines for the Management of Groundwater to Maintain Wetland Ecological Character, at 3, online: Ramsar . Even though the Ramsar Convention text does not deal with groundwater per se, the Conference of Parties to the Ramsar Convention has adopted resolutions and recommendations, which are relevant to groundwater management. For instance,

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As well, pollution from coastal and upstream areas contributes to the contamination of coastal aquifers. Thus, where groundwater quality is compromised, remedial measures may prove to be cost-prohibitive and, sometimes, even futile. This is why inter-linkages must be developed between water management and broader coastal management and planning. 2.5.2 Impacts on Coral Reefs Often described as the tropical rainforests of the oceans,252 coral reefs are home to several marine species253 and provide major ecosystem services.254 It is no surprise that many coastal communities, including those in South Asia, depend on reefs for their livelihood.255 At a global level, it is estimated that coral reefs provide livelihoods to 100 million people and their annual net benefit is about USD30 billion.256 Despite their overwhelming importance, reefs are under severe stress from a range of threats,257 including destructive fishing practices,258 mining,259 operational discharges from ships,260 run off,261 sedimentation,262 and negligent tourism practices.263 It has been reported that in 93 out of 109 countries, coral reefs have been damaged by human activities264 and “are disappearing faster than they can be counted.”265

see ibid.; Resolution X.1: The Ramsar Strategic Plan 2009–2015, at 3, 10, online: Ramsar . 252 Nellemann, Hain & Alder, eds, supra note 17. 253 Marine and Coastal Biodiversity, Coral, online: CBD . 254 These include regulating, provisioning cultural and finally supporting. Ibid.; see also Lauretta Burke et al., Reefs at Risk Revisited in the Coral Triangle (Washington, DC: World Resource Institute, 2011) at 1. 255 Burke et al., ibid. at vi. 256 Marine and Coastal Biodiversity and Climate Change, online: CBD . 257 Burke et al., supra note 254 at 1. 258 Marjorie Mulhall, “Saving the Rainforests of the Sea: An Analysis of International Efforts to Conserve Coral Reefs” (2009) 19 Duke Envtl L & Pol’y F 321 at 326–27 (QL). 259 Ibid. at 329. 260 Burke et al., supra note 254 at 24. 261 Ibid. at 21. 262 Ibid. at 23. 263 Mulhall, supra note 258 at 328. 264 Living Corals Presented by Odyssey Expeditions, online: Marine Biology, Coral Reefs . 265 J.C. Sylvan, “How to Protect a Coral Reef: The Public Trust Doctrine and the Law of the Sea” (2006) 7:1 SDLP 32 at 33 (QL).

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The total area of coral reefs in India is estimated to be around 2,375 square kilometers, with primary concentrations located in the Gulf of Mannar, the Gulf of Kutch, the Andaman and Nicobar islands, and in the Lakshadweep comprising atoll.266 Pakistan,267 Sri Lanka,268 and Bangladesh269 also have coral reef systems. Being an atoll, the coral reef systems of the Maldives is the eighth largest in the world and are spread over a 4,513 square kilometer area, comprising approximately five per cent of the world’s reef areas.270 Despite their size, the reefs in the Maldives are under considerable stress, with coral bleaching and coral extraction reported to be the major threats.271 Though human activities are the main causes of coral stress, rising ocean temperatures and ocean acidification are also contributing factors. As highlighted earlier, the primary impacts of climate change on coral reef systems are changes in ocean temperature and chemistry.272 Higher sea surface temperatures and the amplified presence of GHGs in the atmosphere can lead to coral bleaching.273 As well, frequent and extreme climate events can also batter the

266 Ibid. 267 Pakistan, Pakistan: Fourth National Report (Islamabad: Ministry of Environment, 2009) at 11. 268 Arjan Rajasuriya, “Coral Reefs of Sri Lanka: Current Status and Resource Management” in Vineeta Hoon, Regional Workshop on the Conservation and Sustainable Management of Coral Reefs: Workshop Proceedings of the MS Swaminathan Research Foundation, Chennai, India, 1997 (Chennai: CRSARD, 1997) at B-69. 269 In Bangladesh, coral ecosystems are found around St Martin’s Island. Bangladesh, Fourth National Report to the Convention on Biological Diversity (Bangladesh: Department of Environment, 2010) at 62. 270 Maldives, Fourth National Report to the Convention on Biological Diversity Maldives (Male’: Ministry of Housing and Environment, 2010) at 13. 271 UNEP, Maldives, supra note 227 at 16. 272 Nellemann, Hain & Alder, eds, supra note 17 at 35–36; Belize Institute of Environmental Law and Policy (BELPO) Petition to the World Heritage Committee Requesting Inclusion of the Belize Barrier Reef Reserve System in the List of World Heritage in Danger As A Result of Climate Change and for Protective Measures & Actions (15 November 2004), at 13, online: UF . 273 JEN Veron et al., “The Coral Reef Crisis: The Critical Importance of . 310 Manzoor Iqbal Khattak, Mahmood Iqbal Khattak & Muhammad Mohibullah, “Study of Heavy Metal Pollution in Mangrove Sediments Reference to Marine Environment Along the Coastal Areas of Pakistan” (2012) 44(1) Pakistan J Botany 373. 311 India, Report of the Committee to Review the Coastal Regulation Zone Notification 1991 (Chairman: M.S. Swaminathan, New Delhi: Ministry of Environment & Forests, 2005) at 9, 39; India, Ministry of Environment & Forests, India’s Second National Report to the Convention on Biological Diversity (Delhi: Ministry of Environment & Forests, 2001); Subir Bhaumik, “Fears rise for sinking Sundarbans”, BBC News (15 September 2003), online: BBC News . The two primary forest management and conservation laws, the Indian Forest Act, 1927, and the Forest Conservation Act, 1980, are the primary legislative basis for mangrove protection. In addition, there are certain programmes on mangrove conservation, and India has also established a National Committee on Mangroves and Coral Reefs. However, the legislations remain largely unimplemented. For instance, see Ajit D Padiwal v India, (1998), [1998] AIR 147 (Gujarat HC). 312 The LOSC does not provide much for the protection of corals. However, there are provisions in the LOSC that are indirectly relevant to coral conservation. See for instance, article 194, which call upon states to take measures to prevent, reduce, and control pollution of the marine environment. See generally LOSC, supra note 66. 313 Ramsar Convention, supra note 287. 314 World Heritage Convention, supra note 286. 315 See generally UNCED, Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, [Adopted at Rio de Janeiro, June 13, 1992] 31 ILM 881; UNGA, Non-legally Binding Instrument on All Types of Forests: Note by the Secretariat, 62nd Sess., A/C.2/62/L.5 (22 October 2007). 316 CBD, supra note 285.

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forestry-related aspects of the climate change regime are relevant to the conservation of mangrove forests and other coastal ecosystems. In particular, the UNFCCC,317 the Kyoto Protocol,318 the clean development mechanism rules relating to forest projects,319 the Land Use, Land-use Change and Forestry Guidelines,320 and the REDD+ policy321 are significant.322 The United Nations Environment Programme has also launched Blue Carbon Initiative to advance a global partnership for the sound management of coastal and marine ecosystems to ensure that their carbon sequestration and storage functions are maintained. For this purpose, it supports the development of global, regional and national policies for ecosystem management and possible financial instruments.323 Despite the high potential to sequester carbon, blue carbon stores do not enjoy full recognition in international emission reduction strategies and the focus of international law is predominantly on terrestrial carbon sinks. At national levels, it is evident that mangroves are under severe stress in the South Asian coastal countries, where they are often cleared to make way for coastal development. This is now compounded by climate change impacts, a situation that demands immediate and comprehensive protection for these vulnerable ecosystems. Although mangroves have the propensity to migrate inland, this is not always possible due to the heavy concentration of

317 United Nations Conference on Environment and Development: Framework Convention on Climate Change, 19 June 1993, 31 ILM 849 (adopted at New York on 9 May 1992) [UNFCCC] opening plenary, arts. 4(1)(a)-(d) & 4(8)(c). 318 Kyoto Protocol, supra note 292. 319 Ibid., art. 12. UNFCCC, Clean Development Mechanism (CDM), online: UNFCCC, Kyoto Protocol, Mechanisms, Clean Development Mechanism ; see also Rowena Maguire, “Deforestation, REDD and International Law” in Shawkat Alam et al., eds, Routledge Handbook of International Environmental Law (Oxon: Routledge, 2013) 697 at 707 (for details regarding forest Clean Development Mechanism); see also Gabriel Grimsditch, “Options for Blue Carbon within the International Climate Change Framework” (2011) 11:2 Sustainable Dev L & Pol’y 22 at 23 (HeinOnline). 320 Maguire, ibid. at 706–07. 321 See Randall S. Abate, “REDD, White, and Blue: Is Proposed U.S. Climate Legislation Adequate to Promote a Global Carbon Credits System for Avoided Deforestation in a Post-Kyoto Regime?” (2010) 19 Tul J Int’l & Comp L 95 at 100 (HeinOnline); see generally Jay Tufano, “Forests and Climate Change Policy: An Analysis of Three REDD-Plus Design Options” (2011) 5:4 Carbon Climate LR 443; see also Maguire, ibid. 322 UNFCCC, supra note 317, art. 4.1(d); see also Grimsditch, supra note 319. 323 For further details, see Blue Carbon Project: Project Overview, online: GRID ARENDAL, Projects & Activities, Blue Carbon Project ; UNEP, Blue Carbon Initiative, online: UNEP .

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coastline development.324 Moreover, inland ecosystem migration can trigger other environmental consequences, such as contamination of freshwater resources and brackish habitats.325 All this requires action on many fronts, again underscoring the need for effective ICZM that can help manage and protect sensitive mangrove ecosystems, while continuing to secure sustainable livelihoods and other economic opportunities. 2.6 Conclusion The foregoing analysis emphasizes the following significant points. First, SLR is an issue of widespread concern amongst coastal states. Already, significant SLR has taken place and will likely accelerate in the near future.326 Though the international climate change regime has entered a second commitment period,327 it is doubtful whether the regime will be able to turn down the heat unless and until drastic steps are taken.328 Consequently, the amount of GHGs being pumped into the atmosphere continues to grow at alarming levels, highlighting the importance of climate change adaptation. Second, climate change impacts on coastal areas, resources and communities raise a myriad of complex legal issues involving maritime boundaries, refugee rights, statelessness, and protection of coastal biodiversity. Due to concentrations of large populations in coastal regions, high poverty levels and heavy dependence on ecosystem goods and services, coastal populations have very poor adaptive capacities, and so the impacts of climate change and SLR in South Asia will be severe. The Maldives is expected to sink while large parts of Bangladesh will be lost to rising waters, saddling these countries with massive displaced populations who may move to neighboring countries. Other coastal countries 324 For more on the concept, see generally Christine Schleupner, “Evaluation of Coastal Squeeze and Its Consequences for the Caribbean Island Martinique” 51:5 (2008) Ocean & Coast Mgmt 383 (ScienceDirect). 325 Sri Lanka, Ministry of Environment, Sri Lanka’s Second National Communication on Climate Change (Sri Lanka: Climate Change Secretariat, 2011) at 92. 326 See Part 2.2, above, for more discussion on SLR. 327 See generally UNFCCC, Outcome of the Work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol Draft Decision Proposed by the President Draft Decision -/CMP.8: Amendment to the Kyoto Protocol Pursuant to its Article 3, Paragraph 9, FCCC/KP/CMP/2012/L.9 (8 December 2012). 328 See generally Potsdam Institute for Climate Impact Research and Climate Analytics, The World Bank, Turn Down the Heat: Why a 4oC Warmer World Must be Avoided (Washington DC: The World Bank, 2012).

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in South Asia face similar problems of land and maritime territory loss and displacement. Furthermore, the region may also lose its rich coastal and marine biodiversity. Third, as regards applicable international law, there is a gap between relevant prescriptive norms and ground realities. When most of the instruments identified above were developed, SLR and climate change were not issues of concern. Consequently, international law has not developed in tandem to guide states on how to deal with the consequences of extreme climate change impacts. In other words, it is quite safe to say that there is a vacuum as to the principles and explicit obligations applicable to the full range of issues brought to the fore by climate change and SLR. Ultimately, the challenges posed are sui generis in nature, and these test fundamental legal understandings and assumptions regarding these issues, and, therefore, call for unique legal responses. At the international level, there is a need for stronger legal compacts, which may also require a re-writing of well-established rules to assist governments. At the national level in South Asia, for instance, legal frameworks are inadequate to provide requisite basis for management and regulatory responses. As well, most of the issues at stake are politically contentious; some of them involve far reaching questions of human rights, and they all entail huge costs in terms of social, environmental and financial commitments. The world community is also slow in its response: for one thing, there are pragmatic difficulties in securing agreement on the specific elements of a hard law instrument on the subject, and even when concluded, such a treaty will bid its time to come into force.329 The global inaction on addressing the problem of rising sea levels has been compared by the former President of Nauru, Rene Harris, to that of a modern holocaust.330 329 For instance, the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009, was adopted in 2009 to coincide with the glut in the number of single hull oil tankers that would be available for recycling by 2010. See International Conference on the Safe and Environmentally Sound Recycling of Ships: Agenda Item 8, Adoption of the Final Act and Any Instruments, Recommendations and Resolutions Resulting from the Work of the Conference: Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009, Text Adopted by the Conference, IMO/SR/CONF/45, 19 May 2009 (opened for signature 1 September 2009) art. 17. This convention is yet to enter into force due to insufficient ratifications. See Recycling of Ships: The Development of the Hong Kong Convention, online: IMO, Our Work, Marine Environment, Ship Recycling . 330 Phil Mercer, “Islanders press Bush on global warming”, BBC News (17 August 2001), online: BBC News . In acknowledging that in certain cases, there

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One primary reason for the slow response is that despite incontrovertible scientific evidence affirming climate change, and even if it is acknowledged that we have crossed the tipping point and that climate change and its consequences are irreversible, it is extremely difficult to predict with precision what the actual effects will be, where exactly they will occur, what will be the precise magnitude and at what time scales they will occur. Due to the lack of visible propinquity of predicted impacts, it may be indefeasible to publicly admit that it is already too late to halt the harmful consequences through mitigative steps alone, and that concerted measures must be taken on a war footing on various fronts. An admission as to the disastrous consequences that await us may be considered climate change alarmism. Adaptation actions may be expensive, and given the lack of resources and capital, it may be unwise and politically suicidal to begin talk about sinking nations and displaced populations when we are still unsure as to the precise nature of the impacts. The narrative in this chapter highlights the disparate character of international rules on this subject. The prescription of new guiding rules may require more precise data and consensus among nations, which may be difficult to secure. Accordingly, one of the more practical approaches for countries in South Asia whose coastlines will be affected by climate change impacts and SLR is to cooperate and develop a regional instrument that prescribes rules on intelligent coastal management with the goal to foster sustainable development in their coastal areas. The fourth point that emerges is that since the solutions to climate change are complex and arcane, what is needed is a practical, holistic and effective coastal management strategy grounded on a precaution-based adaptive approach, to respond to the destructive climatic impacts, at least to a certain degree. In other words, for the degraded South Asian coastlines, the objective should be to ensure SCD through the unique methodology of ICZM interlinked with CCCA. The role of statutes in facilitating and supporting this effort is examined in succeeding chapters. can be “loss and damage” associated with the adverse effects of climate change more than what adaptation can reduce in developing countries that are particularly vulnerable to the adverse effects of climate change, the Cancun Adaptation Framework has established the Warsaw International Mechanism for Loss and Damage. For more details, see Decision 2/CP.19: Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts in Conference of the Parties: Report of the Conference of the Parties on its Nineteenth Session, Held in Warsaw from 11 to 23 November 2013: Addendum: Part two: Action taken by the Conference of the Parties at its Nineteenth Session, FCCC/ CP/2013/10/Add.1 (31 January 2014) at 6.

chapter 3

Coastal Laws, Integrated Coastal Zone Management, and Coastal Climate Change Adaptation in South Asia 3.1 Introduction In October 2009, under the leadership of the then President Mohamed Nasheed, the cabinet of the Maldives held an underwater meeting in scuba gear. Ministers and officials, shouldering compressed air tanks, dove into the turquoise waters off Girifushi Island and took their seats at a table arranged on the seafloor against the backdrop of a coral reef teeming with fish and other marine life.1 The meeting went on for half an hour, with members communi­ cating with one another and with their President via white boards and hand signals. The primary purpose for choosing this unconventional venue was to influence a positive outcome at the United Nations Climate Change Con­ ference being held later that year in Copenhagen.2 At a subsequent press conference, when President Nasheed was asked by reporters what would hap­ pen if the summit failed, he somberly replied: “[w]e are going to die.”3 Even though the world’s first underwater cabinet meeting failed to cre­ ate ripples for concrete outcomes at the Copenhagen Summit, it did serve to highlight the predicament faced by small island states, which are some of the world’s lowest-lying places on Earth.4 While the primary contributors to the incessant dumping of greenhouse gases into the atmosphere are the developed nations, the paradox is that the harmful consequences of this pol­ lution will disproportionately befall developing nations, including small island states, which have the least capacity to adapt to climatic changes.5 1 “Maldives government holds underwater cabinet meeting”, The Telegraph (17 October 2009) online: The Telegraph . 2 “Maldives politicians submerge”, ReutersVideo (17 October 2009) YouTube Video, online: YouTube . 3 See also “President Nasheed: “Our country will not exist”, 350org (22 September 2009) YouTube Video, online: YouTube . 4 “Maldives politicians submerge”, supra note 2. 5 “Summary for Policymakers: A Report of Working Group II of the Intergovernmental Panel on Climate Change” in James J. McCarthy et al., eds, Climate Change 2001: Impacts, Adaptation, and Vulnerability (Cambridge: Cambridge University Press, 2001) 1 at 8; see also Asia-Pacific

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004282209_�04

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The five coastal countries of South Asia have a combined coastline length of about 11,500 kilometers,6 with low elevation coastal zones spread over an area of about 160,000 square kilometers. These coastal zones house upwards of 135 million people7 and support 40 per cent of the economic activities of the region, including most of the critical economic infrastructure.8 This region also supports some of the most diverse and rich concentrations of coastal bio­ diversity and marine species.9 The Gulf of Mannar, the Maldivain atolls and the Sundarban mangroves are but a few examples. In addition, the presence of perennial rivers such as the Brahmaputra, the Ganges, the Godavari, the Indus, and the Mahaweli Ganga have led to the creation of large networks of back­ waters, estuaries, salt marshes and mangroves that sustain diverse flora and fauna. Importantly, these ecosystems are home to some of the largest concen­ trations of poor coastal populations in the world.10 Exploitation of the coastal resources and ecosystems by these poor popu­ lations is not always based on sustainability principles, and this has signifi­ cantly hampered the resilience of the ecosystems. For instance, when the 2004 Indian Ocean tsunami hit South Asia, the destruction was far less in regions where there were extensive mangroves, to act as a buffer to dissipate wave energy; conversely, in areas where the mangroves were degraded, the destruc­ tion was immense. 11

Human Development Report: One Planet to Share: Sustaining Human Progress in a Changing Climate (New Delhi: Routledge, 2012) at 20 (“vulnerability perpetuates poverty, and pov­ erty, in turn, exacerbates vulnerability”) [Asia-Pacific Human Development Report]. 6 SASP, Objectives and Activities, online: SACEP . 7 LOICZ South Asia Mode, About South Asia Coast, online: . 8 Ibid. 9 UNEP, Global Synthesis: A Report from the Regional Seas Conventions and Action Plans for the Marine Biodiversity Assessment and Outlook Series (UNEP Regional Seas Programme, 2010) at 52. 10 Data from the SAARC Coastal Management Centre suggests that, as of 2000, nearly 54.80 per cent of the population in Bangladesh, 26.30 per cent of the population in India, 81.10 per cent of the population in the Maldives, 09.10 per cent of the population of Pakistan, and nearly 100 per cent of the population of Sri Lanka living within 100 kilo­ meters of the coastline depend on fishing. SAARC, Coastal Statistics, online: SAARC Coastal Zone Management Centre [SAARC, Coastal Statistics]. 11 Environmental Justice Foundation, Mangroves: Nature’s Defence against Tsunamis: A Report on the Impact of Mangrove Loss and Shrimp Farm Development on Coastal Defences (London: EJF, 2006) at 8.

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As seen in the previous chapters, South Asia, especially its coastal regions, is slated to be hit hard by climate change and sea level rise (SLR). The projected rise in sea level is expected to cause significant damage to coastal land and ecosystems and will affect millions who live in this area. On the sub-continent alone, it is estimated that nearly 130 million people live in the low-coastal elevation zones.12 Moreover, as the entire land territory of the Maldives lies in that zone, it is predicted that this country will be lost to rising sea levels. Sri Lanka also stands to lose substantial chunks of its land territory. Indeed, Sri Lanka has already had to deal with significant coastal erosion. The burgeon­ ing population, scarce resources, and high levels of poverty means that even a small variation in climate can lead to irreversible damage that will push large numbers of people into further destitution, as they have little capacity and few resources to adapt to climate change impacts. The Intergovernmental Panel on Climate Change (IPCC) observes that by the most conservative estimates, the sea level will be about 40 centimeters higher at the end of this century.13 This will increase the number of people that are exposed to floods annually from 19 million to 94 million, and almost 60 per cent of this increase will be in South Asia.14 According to the IPCC, the current rate of SLR in Asia’s coastal areas is one to three millimeters per year, which is marginally higher than the global average.15 An annual SLR rate of 3.1 millimeters has been reported over the past decade, compared to 1.7–2.4 mil­ limeters per year over the 20th century as a whole, which suggests that SLR has accelerated in relation to the long-term average.16 Additionally, an anticipated rise in sea surface temperature of two to four degrees Celsius will increase the incidence of tropical cyclones by 10 to 20 per cent in South Asia.17 The coastal mega-cities of South Asia, namely, Mumbai (20 million), Kolkata (15.6 million), Karachi (13.1 million), Dhaka (14.7 million)18 and Chennai 12

Sudhir Chella Rajan, Blue Alert: Climate Migrants in South Asia: Estimates and Solutions—A Report by Greenpeace (Greenpeace India Society, 2008) at 6. 13 Rex Victor Cruz et al., “Asia” in M.L. Parry et al., eds, Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 469 at 484. 14 Bangladesh, Climate Change Cell, Climate Change and Bangladesh (Dhaka: Department of Environment, 2007) at 10 [Bangladesh, Climate Change and Bangladesh]. 15 Cruz et al., supra note 13 at 479; see also, UNEP, SAARC & DA, South Asia Environment Outlook 2009 (Kenya: UNEP, 2009) at 47. 16 Cruz et al., ibid. at 479. 17 Ibid. 18 Asia-Pacific Human Development Report, supra note 5 at 121.

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(6.9 million),19 are situated only a few meters above sea level. It is expected that the rising seawaters will inundate large tracts of land, destroy coastal wetlands and other estuarine systems, increase salinity, impact the availability of fresh water, and destroy coastal agriculture and aquaculture, leading to the displace­ ment of millions. It is also expected that rising coastal water temperatures in South Asia will exacerbate the incidence of cholera.20 This chapter provides an overview of the current state of coastal zone man­ agement (CZM) in India, Pakistan, Bangladesh, Sri Lanka and the Maldives in terms of the relevance of South Asian coastal law making to the exercise. Essentially, it is a report on the state of coastal governance and of coastal man­ agement laws, systems and practices in South Asia. Specifically, it analyzes the preparedness, or otherwise, of coastal South Asia for SLR and other climate change impacts via their coastal laws in terms of how far those laws provide for integrated coastal zone management (ICZM) and coastal climate change adap­ tation (CCCA). The analysis considers: 1) the coastal situation in each country; 2) major threats to the coastal zone, including problems posed by SLR; 3) an overview of the features of the coastal law, policies, practices, and relevant institutions on CZM and what specific measures they envisage for CCCA; and 4) critical flaws and gaps in national CZM efforts, including the coastal laws that have hampered attainment of sustainable coastal development (SCD). Section 3.2 below examines the development of ICZM legal regimes and CCCA in South Asia by chronicling the experiences of India, Bangladesh, Sri Lanka, Maldives and Pakistan. Section 3.3 carries out a coastal law audit. The chapter concludes by emphasizing the need for a regional framework to help operationalize ICZM law in South Asia and to facilitate adaptation to climate change and SLR. 3.2

Sea Level Rise, Integrated Coastal Zone Management, and Coastal Climate Change Adaptation in South Asia

3.2.1 India Lapped by the warm waters of the Arabian Sea to the west, the Bay of Bengal to the east, and the Indian Ocean to the south, India boasts a lengthy coastline of about 8,158 kilometers. Of this, nearly 6,064 kilometers are mainland coast­ line, and the remainder is island coastline of the Andaman and Nicobar and 19 20

IOC/UNESCO et al., A Blueprint for Ocean and Coastal Sustainability (Paris: IOC/UNESCO, 2011) at 9. Cruz et al., supra note 13 at 471.

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the Lakshadweep Islands (2,094 kilometers).21 The entire coastal landmass falls within nine maritime states and four union territories.22 These waters are rich and unique from marine biodiversity and eco-conservation perspectives. The several major and minor rivers and their tributaries that criss-cross the Indian land mass before discharging into the two seas have gifted the coun­ try with a wide array of coastal ecosystems like estuaries, mangroves, beaches, backwaters, salt marshes, lagoons, coral reefs, and wetlands.23 In addition, the bay islands of the Andaman and Nicobar group and the atoll island group of Lakshadweep add to the rich marine and coastal biodiversity of this country. The Indian coastline supports huge agglomerations of people, industry, and development projects. It is estimated that more than 250 million people reside within 50 kilometers of the coastline and that the 73 coastal districts (out of a total of 593 districts) accommodate nearly 17 per cent of the national population.24 Seventy-seven cities dot the Indian coastline, of which Mumbai, Kolkata, Chennai, Kochi and Visakhapatnam are among the largest and most densely populated in South Asia. The density of population in coastal areas ranges from less than 25 people per square kilometer to as high as 700 or more in others.25 To support this vast population, the coastal regions accommodate

21

India, R. Ramesh, R. Purvaja & A. Senthil Vel, National Assessment of Shoreline Coast: Puducherry Coast (Chennai: NCSCM, Ministry of Environment & Forests, 2001) at 30; Centre for Environment and Development, Draft Final Report, World Bank Assisted Integrated Coastal Zone Management Project: Environmental and Social Assessment, E2303 v2 (Thiruvananthapuram: Ministry of Environment & Forests, 2009) at 1 [CED, Draft Final Report]. 22 States & Union Territories, online: GOI web directory . 23 For an overview, see India, Ministry of Environment & Forests, Report of the Committee Chaired by Prof. M.S. Swaminathan to Review the Coastal Regulation Zone Notification 1991 (New Delhi: Ministry of Environment & Forests, 2005) at 7–10 [India, Report of the Committee Chaired by Prof. M.S. Swaminathan]. 24 CED, Draft Final Report, supra note 21; see SAARC, Coastal Statistics, supra note 10; see also Gov’t of India, Space Applications Centre, Coastal Zones of India (Ahmedabad: Space Applications Centre, 2012) (nearly 25 per cent of the country’s population lives within 100 kilometers of the coastline). 25 R. Krishnamoorthy et al., “Environmental and Human Impacts on Coastal and Marine Protected Areas in India” in Guido Visconti et al., eds, Advances in Global Change Research: Global Change and Protected Areas (The Netherlands: Kluwer Academic Publishers, 2001) 373 at 392. There are nearly 3,600 fishing villages in India and the total fishing population is about 14.66 million. Ramesh, Purvaja & Vel, supra note 21.

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a colossal infrastructure, including thermal and nuclear power plants, an array of industries, mines, sewage treatment plants, and major and minor ports.26 India’s coasts are also attracting an increasing number of tourists.27 Apart from acting as bases for the launching of catamarans and other traditional craft, and for repairing and drying nets and other gear, beaches have tradition­ ally been popular recreational sites. Of late, they have been transformed into heavily developed areas housing tourist resorts, amusement parks, hotels, etc. All of this development has led to the displacement of many fishing villages and vast stretches of beaches have been barricaded.28 Though such develop­ ment projects bring jobs to local communities and stimulate the local econ­ omy, they also bring a series of socio-economic and environmental problems, since several of the tourism-related and other developmental projects are implemented at the expense of the health of fragile coastal ecosystems.29 Clearly, coastal area resources play a critical role in supporting India’s national economy and in sustaining the subsistence economies of local com­ munities. Nevertheless, their misguided exploitation exceeds sustainable yields, leading to their degradation. For instance, mechanisation in the fishing sector has led to a sharp decline in the catch available to the traditional sec­ tor, which has seriously hampered livelihood prospects.30 Furthermore, access and usufructuary rights to beachfronts and to other coastal resources cur­ rently enjoyed by traditional fishing communities are fast giving way to megadevelopment projects.31 26

It is estimated that there are nearly 308 large-scale industrial units situated on the Indian coasts. CED, Draft Final Report, supra note 21 at 2. The Indian coastline houses 13 major ports and 187 minor ports, which supports over 90 per cent of India’s foreign trade by sea. See also Ministry of Shipping, Ports Wing, online: Ministry of Shipping . 27 See generally Ligia Noronha et al., eds, Coastal Tourism, Environment, and Sustainable Local Development (New Delhi: TERI, 2002). 28 See generally, Rohini Mohan, “A Storm Foretold: Coastal Wars”, Tehelka.com 47:8 (26 November 2011) online: Tehelka.com . For more stories on the state of degradation facing India’s beaches and coastline, see “Gujarat’s Mangroves Under Threat—NDTV Report”, Save Our Beach (8 June 2009) YouTube online: Save Our Beach . 29 Ibid. 30 Cochin Trawl Net Boat Operators Association v Kerala, (1992) [1992] AIR 342 (Ker HC). 31 For an overview on the impacts on special economic zones and the fishing community, see Manshi Asher, “SEZs: Stirring up a storm along the Indian coast” InfoChange (July 2007), online: Infochange, Analysis, Trade and Development, News & Features ; see also Dighi Koli Samaj Mumbai Rahivasi Sangh, Secretary, Jagannath Ambaji, Mumbai v India, (2009) [2009] INDLAW 797 (Bombay HC) (upholding

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In addition to non-point sources of pollution, the near absence of effective treatment plants and the presence of a large number of pollution-intensive industries have led to the dumping of enormous quantities of hazardous and municipal wastes into coastal waters.32 An instance in point is the shipbreak­ ing yard at Alang in Gujarat state, where shipbreaking is carried out under primitive conditions. As there is no containment of the wastes, deadly car­ cinogens and bio-accumulative heavy metals flow directly into the Arabian Sea.33 Frequent algal blooms on the east and west coasts of India are clear indications of the poor quality of coastal waters.34 With increasing economic activity and heightened demand for power, the growing number of thermal and nuclear power plants situated on the coasts poses severe environmental threats.35 Even now, wetlands and mangrove swamps are considered merely dumping grounds for garbage and a breeding ground for mosquitoes; as a con­ sequence, they are filled in to make way for the construction of housing col­ onies, roadways, power plants and industrial units.36 the acquisition of public land and handing it over to a private entrepreneur for develop­ ing a port); Bhikaji Jagannath Waghdhare, Mumabi v India, Department of Atomic Energy, (2009) [2009] INDLAW 1001 (Bombay HC) (upholding acquisition of coastal lands under urgency clause for the Jaitapur nuclear power plant). 32 Nearly 90.62 per cent of the wastewater finds its way into coastal waters without any treatment. CED, Draft Final Report, supra note 21 at 92. 33 See generally Tony George Puthucherril, From Shipbreaking to Sustainable Ship Recycling: Evolution of a Legal Regime, David Freestone, ed., 5 Legal Aspects of Sustainable Development (The Netherlands: Martinus Nijhoff, 2010) [Puthucherril, From Ship­ breaking]; Research Foundation for Science v India, (2007) [2007] AIR 3118 (India SC) (directing the government of India to formulate a comprehensive code for shipbreaking); TNSS Steels Private Ltd v India, (2009) [2009] INDLAW 4295 (Madras HC) (discontinuing shipbreaking activities in the Ramanathapuram district due to the harmful impacts on marine and coastal ecology). 34 See generally Tony George Puthucherril, “Ballast Waters and Aquatic Invasive Species: A Model for India” (2008) 19 Colo J Int’l Envtl L & Pol’y 381 (QL). 35 Nuclear plants release nearly 50 per cent of their generated heat into the coastal and marine environment. CED, Draft Final Report, supra note 21 at 93; see also Citizens for a Just Society, through its Vice President, K Pullaiah v India, (2005) [2005] 5 Bom CR 316 (Bombay HC) (refused to deal with the issue of radioactive nuclear waste leaks from the Babha Atomic Research Centre into the Thane Creek on the ground of national security); Bombay Environmental Action Group v Maharashtra, (1991) [1991] AIR 301 (Bombay HC) (upholding the setting up of a thermal power plant, since arrangements were made to ensure that the water discharged into the creek had an ambient temperature). 36 Mohan, supra note 28; see also Nauzer K. Bharucha, “500 acres in city may open up for development”, The Times of India (26 December 2011) online: The Times of India ; Chinmayi Shalya, “2 mangrove stretches at

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The burgeoning population and widespread poverty among coastal com­ munities, compounded by overexploitation of coastal resources, competing uses, destruction of habitats, implementation of a plethora of developmental projects in coastal areas (the environmental soundness of many of which are seriously disputed), rampant pollution and the dumping of all sorts of wastes into coastal waters have considerably affected the health of India’s oceans and coasts.37 As mentioned in chapter one, the overarching effects of SLR and cli­ mate change will exacerbate these problems.38 The predicted rise in mean sea temperature may increase the frequency and intensity of tropical storms and hurricanes and trigger other catastrophic phenomena like bleaching of corals, extreme changes in weather patterns, and increased precipitation. Combining climate change processes and SLR with these other pressures jeopardizes the well-being of coastal communities and significantly reduces their capacity to adapt to SLR. India has been identified as one of the 27 countries slated to be most affected by SLR, with current average SLR along the Indian coast estimated at about 1.3 millimeter per year.39 An early study on the impact of SLR on India’s coasts revealed that nearly 5,763 square kilometers of coastal area in eight coastal states will be affected, displacing a total of 7.1 million people (as

37

38

39

risk from dumping” The Times of India (20 February 2013) online: The Times of India . The construction of a harbour in 1989 and two breakwaters in Puducherry stopped the littoral drift leading to severe coastal erosion. India, Ministry of Environment & Forests, Final Frontier: Agenda to Protect the Ecosystem and Habitat of India’s Coast for Conservation and Livelihood Security, Report of the Expert Committee on the Draft Coastal Management Zone (CMZ) Notification, Constituted by the Ministry of Environment and Forests, Under the Chairmanship of Prof. MS Swaminathan (New Delhi: Ministry of Environment & Forests, 2009) at 21 [India, Ministry of Environment & Forests, Final Frontier]; Coastal and Marine Pollution: National Institute of Oceanography, DonaPaula, Goa-403004, India (March, 2008), online: SAARC-SDMC . The ADB also points out that “[c]limate change represents an important potential brake on recent rapid economic growth in India.” Asian Development Bank, Addressing Climate Change and Migration in Asia and the Pacific: Final Report (Metro Manila: Asian Development Bank, 2012) at 32. India, INCCA, Climate Change and India: A 4X4 Assessment, A Sectoral and Regional Analysis for 2030s, No. 2 (New Delhi: Ministry of Environment & Forests, 2010) at 47 [INCCA, Climate Change and India].

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of 1981), representing nearly 4.6 per cent of the total coastal population.40 A more recent study forecasts that by 2050 nearly 37.2 million people will be at risk from SLR.41 India stands to lose the entire Lakshadweep archipelago in the event of a one-meter rise in sea level. The Kutch region in Gujarat state, Mumbai in Northern Malabar, Southern Kerala, the Cauvery delta in Tamil Nadu, the Krishna and Godavari deltas in Andhra Pradesh, the Mahanadi delta in Orissa, and the Ganges delta in the West Bengal are considered to be the most vulnerable to SLR.42 In the event of a one-meter rise, Gujarat and West Bengal stand to lose the maximum amount of land; West Bengal, Maharashtra, and Tamil Nadu will be most affected in terms of population; and West Bengal, Orissa, and Maharashtra will sustain maximum damage in terms of land use.43 While a one-meter rise in sea level will result in an inundation of nearly 4.2 square kilometers in Nagapattinam of Tamil Nadu, nearly 478 square kilometers in Paradip will be inundated, with the probable inundation zone 40 kilometers landward.44 Due to the pres­ ence of backwaters and islands, the Kochi region (net SLR is 1.75 millimeters per year) in Kerala will be severely affected.45 Overall, the Chennai district in Tamil Nadu is considered to be the most vulnerable to SLR in India, followed by North Goa and Mumbai.46 40

Ligia Noronha, “The Rising Seas: Need for Longer-term Perspective in Coastal Planning and Adaptation for Developing Countries” in TERI, ed., Environmental Threats, Vulnerability, and Adaptation: Case Studies from India (New Delhi: TERI, 2004) 167 at 174. The World Bank estimates that more than 60 million people who presently live in the low elevation coastal zone will be badly impacted by SLR. CED, Draft Final Report, supra note 21 at 83. 41 Asian Development Bank, supra note 38 at 25. 42 Ligia Noronha, B.S. Choudri & K.S. Nairy, “Relative Vulnerability of Districts to a Potential Sea-Level Rise Along the Coastline of India” in TERI ed., Environmental Threats, Vulnerability, and Adaptation: Case Studies from India (New Delhi: TERI, 2004) 121 at 126. 43 Noronha, supra note 40 at 174–75. 44 INCCA, Climate Change and India, supra note 39 at 56. 45 Ibid. at 47. 46 Noronha, Choudri & Nairy, supra note 42 at 131. The megalopolis of coastal Mumbai, with a population of nearly 18 million, and a SLR rate of 1.20 millimeters per year, is highly vulnerable to SLR. A significant portion of Mumbai is built on reclaimed land and, it is predicted that a one-meter rise in sea level will inundate about 86.75 square kilometers of the city. Noronha, supra note 40 at 183. A recent study notes that a one-meter rise in aver­ age sea level will permanently inundate about 1,091 square kilometers along the Tamil Nadu coast and the total replacement value of infrastructure (ports, power plants and major roads) that will be impacted will be approximately USD11 billion. Sujatha Byravan,

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It also has been reported that the sea surface temperature of the two seas flanking the Indian land mass is increasing by about 0.04oC annually. As a con­ sequence, species of fish like oil sardines, a cheap source of protein for local communities, are migrating to higher latitudes with colder waters.47 The inci­ dence of tropical cyclones has also increased.48 India adopted its first coastal law in 1991, the Coastal Regulation Zone Notification of 1991 (CRZ 1991).49 This law held the field for nearly two decades and had a turbulent existence. Attempts to replace it with a new legal frame­ work came to fruition in 2011 with the Coastal Regulation Zone Notification of 2011 (CRZ 2011). Even though the new law supersedes the CRZ 1991, its legal architecture draws heavily on the CRZ 1991. Therefore, an inclusive study on India’s coastal law requires an analysis of both, and of the sequence of events that led to the emergence of the CRZ 2011. Additionally, this legal regime is supported by extensive judicial intervention that not only shaped the 1991 law but will influence how the 2011 law is implemented. 3.2.1.1 The Coastal Regulation Zone Notification, 1991 The need to protect India’s coast-line found concrete expression in 1981, when the then Indian Prime Minister, Indira Gandhi, addressed letters to the Chief Ministers of all coastal states, directing them to ensure that the coastal zone up to 500 meters from the high-tide line (HTL) was kept free from all development activities.50 However, due to pressure from the tourism indus­ try, the central government reduced the distance from 500 to 200 meters.51 Subsequently, in 1983, administrative guidelines were issued to regulate the development of beaches.52 Finally, in 1991, the central government adopted the CRZ 1991 as a piece of subordinate or delegated legislation under the Sudhir Chella Rajan & Rajesh Rangarajan, Sea Level Rise: Impact on Major Infrastructure, Ecosystems and Land along the Tamil Nadu Coast (Madras: CDF, IFMR [nd]). 47 INCCA, Climate Change and India, supra note 39 at 75–76 (migration of Indian sardines). 48 Ibid. at 48. 49 The Coastal Regulation Zone Notification (N, SO114(E) 1991, India) [The Coastal Regulation Zone Notification, 1991]. This coastal law is a piece of subordinate legislation applied throughout the country. 50 India, CEE Coordination Team, Report of the Public Consultation with Fisherfolks and Community to Strengthen Coastal Regulation Zone (CRZ) Notification, 1991 (Ministry of Environment & Forests, 2010) at 7 [India, Report of the Public Consultation with Fisherfolks]. 51 Shyam Divan & Armin Rozencranz, Environmental Law and Policy in India: Cases, Materials and Statutes, 2nd ed. (India: Oxford University Press, 2001) at 477. 52 Ibid. at 478.

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Environment (Protection) Act, 1986, and its rules, to accord special protection to coastal areas.53 As will be seen subsequently, the nature of the law is vital to determining the stability of a coastal law regime.54 The CRZ 1991 declared the coastal regulation zone to be that portion of seas, bays, estuaries, creeks, rivers and backwaters influenced by tidal action in the landward side up to 500 meters from the HTL and the land between the lowtide line (LTL) and the HTL.55 The CRZ was divided into four categories: CRZ-I,56 CRZ-II,57 CRZ-III,58 and CRZ-IV.59 To achieve an orderly conduct of develop­ ment activities, each CRZ category was designated for a different level of devel­ opment based on a different set of restrictions on the setting up and expansion of industries and on the conduct of operations or processes within the zone. As a general regulatory measure, the CRZ 1991 prohibited 13 activities (subject to exemptions) within the entire CRZ.60 In due course, several amendments widened the scope of these exemptions, considerably diluting the potency of the regulatory scheme.61 All coastal states and union territory administra­ tions were required to prepare coastal zone management plans (CZMP) that identified and classified CRZ areas.62 The Ministry of Environment and Forests (MoEF) was to approve these CZMPs,63 and all development activities within the CRZ were to be carried out within the framework of these plans.64 53

For a discussion on the nature of delegated legislation in India, see Sukhdev Singh v Bhagat Ram, (1975) [1975] AIR 1331 (SC India); BK Srinivasan v Karnataka, (1987) [1987] AIR 1059 (SC India); see also N.K. Jayakumar, Administrative Law, 1st ed (New Delhi: Prentice-Hall of India, 2005) at 14; see also S.S. Vishweshwaraiah, “Delegated Legislation” (Lecture deliv­ ered at the National Law School of India University, Bangalore, 26 July 2004) [unpub­ lished]. The Environment (Protection) Act, 1986 (EPA, 1986) was enacted under entry 13, list I, of schedule VII and article 253 of the Constitution of India in 1950. The EPA, 1986 is a comprehensive piece of legislation that confers wide powers on the federal government to make delegated legislation on any matter relating to environmental protection. 54 See Part 3.2.1.1.1, below, for more on this aspect. 55 The Coastal Regulation Zone Notification, 1991, supra note 49. 56 Ibid., annex I, ¶6(1). 57 Ibid. 58 Ibid. 59 Ibid. 60 Ibid., ¶2. 61 For the text of various amendments, see Ministry of Environment & Forests, Legislations: Coastal Regulation Zone, online: Ministry of Environment & Forests [MoEF, Legislations]. 62 The Coastal Regulation Zone Notification, 1991, supra note 49, ¶3(3)(i). 63 Ibid. 64 Ibid., ¶3(3)(ii).

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3.2.1.1.1 Evaluation of the CRZ, 1991 The CRZ 1991 was a unique attempt to bring under a single directive a com­ prehensive framework for the effective regulation and management of the Indian coastline. It was based on the fundamental principle that different coastal areas have diverse ecological features and sensitivity and, therefore, require varying degrees of protection. The CRZ 1991 did not have a preamble; hence, it is difficult to decipher its underlying objectives. Nonetheless, the CRZ 1991 was in certain ways far-reaching in its vision and scope, and some of its provisions were designed to support a sustainable approach to coastal development. This was evident from the proscriptions that it imposed on thir­ teen activities, even though the rigor of these prohibitions was subsequently diluted.65 Furthermore, the classification of the coastal zone into the four cat­ egories with specified limits on coastal development reinforced a sustainable approach to coastal management. However, the major deficiency of this law was that it failed to adequately provide for “integration” and for a “principled” approach to ocean and coastal space and resources management. The CRZ 1991 did very little to transcend the sectoral approach to management of coastal areas and resources by impos­ ing a more composite, integrative and sustainable methodology. Some of these aspects are detailed below. A significant omission in the CRZ design from an ICZM perspective is the absence of a seaward side in the overall scheme for specialized and inte­ grated coastal management.66 This is a critical omission, because the health of coastal ecosystems depends in large measure on the health of the oceans, and vice-versa.67 Managing coastal lands without planning for the related seawater component renders the regime inchoate and unsustainable in the long term.68 Furthermore, nothing in the CRZ 1991 facilitates participatory decisionmaking, even though community involvement is an important facet of the ICZM process.69 This has had serious repercussions for the effective imple­ mentation of the law. For instance, in identifying and classifying the different CRZ zones, there have been several instances of wrong classification, which

65 Ibid., ¶2. 66 See generally ibid. 67 Biliana Cicin-Sain & Robert W. Knecht, Integrated Coastal and Ocean Management: Concepts and Practices (Washington DC: Island Press, 1998) at 45 (identifying spatial inte­ gration as a core feature of the ICZM process). 68 Ibid. 69 Ibid. at 129–34.

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ultimately helped land developers and hoteliers circumvent the law.70 This confusion could have been avoided had local communities, at least through the constitutionally stipulated local self-government units,71 been involved in the process of classification of the different zones. Moreover, greater public involvement also could have improved the enforcement mechanism, because local communities have better knowledge of the terrain and are more cogni­ zant of violations.72 Even though the CRZ 1991 was amended nearly 25 times during its two-decade existence, not a single amendment pertained to confer­ ring significant roles on the local self-government bodies.73 In its initial avatar, the CRZ 1991 prohibited 13 activities in the CRZ with minimal exemptions. Successive amendments diluted the original intent and increased the scope of the exemptions, thereby virtually opening up the coast to a large range of development activities. For instance, an amendment was effected in 2001 that permitted land reclamation, bunding or disturbing the natural course of seawater “essential for activities permissible under the notification.”74 Even though reclamation for commercial purposes was prohib­ ited, the use of such broad language inadvertently opened up more coastal spaces to unbridled development. Perhaps the most important factor that led to near turmoil in the adminis­ tration of this coastal law in India was the ineffective and half-hearted enforce­ ment of the truncated CRZ 1991. Several amendments were made to legalize violations, which further undermined the efficacy of the law and emboldened increased violations. The CRZ 1991 was issued after copious and rigorous study; however, the ink was barely dry when the tourism industry started demand­ ing amendments. As subordinate legislation, it is fairly easy for the executive, whose domain it is, to effect the amendments. This is one of the factors that facilitated the passage of the 25 amendments. Moreover, only a few of the amendments were placed in the public domain for any valuable and critical 70

71 72

73 74

Goa Foundation, Goa v Diksha Holdings Pvt Ltd, (2001) [2001] 2 SCC 97 (India SC) [Diksha Holdings]; The Goa Foundation v The North Goa Planning and Development Authority, (1995) [1995] AIR 342 (Bombay HC); Forum for Sustainable Development, Hyderabad v India, (2010) [2010] 5 ALT 189 (Andhra Pradesh HC). See generally Constitution of India 1950, parts IX, IX-A (empowering local self-government units). The Goa Foundation, Represented by its Secretary v Goa, Through its Chief Secretary, (2000) [2000] 4 Bom CR 709 (Bombay HC) (upholding a scheme to detect violations of the CRZ 1991). See MoEF, Legislations, supra note 61. For the text, see (N, SO 329(E), 2001, India) at 2, online: MoEF .

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input. A study notes that, up to July 2003, of the 19 amendments carried out, only three were open for public comment.75 Essentially, therefore, the strategy morphed into an exercise in managing the coastal zones through notifications and revisions, rather than by a full-fledged statute developed through compre­ hensive parliamentary debate. Moreover, CRZ 1991 did not provide mechanisms for ensuring compliance. It merely required that: “[t]he Ministry of Environment & Forests and the Government of state or union territory and such other authorities at the State or Union Territory levels as may be designated . . . shall be responsible for mon­ itoring and enforcement of the provisions of this Notification.”76 Coastal states and union territory administrations were required to prepare, within one year, CZM plans identifying and classifying the regulation zones, which were then to be examined and subsequently approved by the MoEF. Since CRZ 1991 came into force on 19 February 1991, the coastal states and union territories were to prepare these plans by 19 February 1992. However, due to non-compliance with these stipulations on 3 April 1995, the Supreme Court of India directed all coastal states and union territory administrations to frame CZMPs within a period of six weeks. Despite these efforts to secure implementation of the coastal law, states continued to be non-compliant. Indeed, non-compliance with CRZ 1991 and earlier court orders formed the subject of a challenge before the Supreme Court of India in Indian Council for Enviro-legal Action v India.77 This decision was ‘path-breaking’ in several respects, because the Supreme Court directed the central government to set up state coastal management authorities for all coastal states and also to set up the national coastal management authority. States were also directed to file complete CZMPs and the central government was to finalize and approve these plans within three months of the judgment. The Supreme Court expressed its displeasure over the continued non-observation of the coastal law as follows: [e]nactment of a law, but tolerating its infringement, is worse than not enacting a law at all . . . Violation of antipollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of envi­ ronment, the adverse effect of which will have to be borne by the future generations.78 75

See generally Manju Menon, Sudarshan Rodriguez & Aarthi Sridhar, “Coastal Zone Management: Better or Bitter Fare?” (2007) 42 Economic & Political Weekly 3840. 76 The Coastal Regulation Zone Notification, 1991, supra note 49, ¶4. 77 (1996), [1996] INDLAW 1074 (India SC) [Indian Council for Enviro-legal Action]. 78 Ibid., ¶26.

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Persistent attempts by the executive to subvert the beneficence of the coastal law by not implementing it in earnest left the court with no other choice but to step beyond its traditional confines to prod the executive to discharge its con­ stitutional obligations vis-à-vis the coastal law. Still, it took considerable time for coastal states and union territory administrations to prepare their CZMPs. Due to this delay, it became difficult to identify the specific zones where activi­ ties were permitted, regulated, or prohibited, considerably hampering the effi­ cient working of CRZ 1991. Surprisingly, CRZ 1991 did not provide for any administrative apparatus. As mentioned above, it was only consequent to the Supreme Court’s intervention in Indian Council for Enviro-legal Action,79 that the MoEF issued additional noti­ fications under the Environment (Protection) Act, 1986 constituting a national coastal zone management authority80 and authorities for the different coastal states81 and union territories.82 The three sets of coastal zone management authorities were granted powers to take measures to protect and improve the quality of the coastal environment and to prevent, abate, and control environ­ mental pollution in the coastal areas under their control.83 Even though these authorities were empowered to take punitive action against violations, they were often selective, and generally actions were ini­ tiated only against small-scale operators.84 One major reason for the overall shoddy enforcement of the law is that the introduction of this coastal regu­ latory framework coincided with India’s embrace of globalisation and the initiation of a series of economic reforms. In the new scheme for economic development, coastal lands emerged as prized real estate and a facilitator of the rise of a globally-competitive India. Accordingly, CRZ 1991 was diluted on one pretext or the other. 79 80

See generally ibid. Coastal Regulation Zone Notification for National Coastal Zone Management Authority (N SO991 (E) 1998, India); see also Reconstituting the National Coastal Zone Management Authority (N SO302 (E) 2011) [NCZMA]. Specifically, the NCZMA was to: examine and give approval to area-specific management plans; advise the central government; review viola­ tions; examine proposals to modify the CZMPs and make recommendations to the cen­ tral government; provide technical assistance and guidance to state and union territory governments and to the state and union territory CZMAs; and co-ordinate the actions of the state and union territory CZMAs. NCZMA, ibid., ¶¶ II–VIII. 81 For instance, see Orissa Coastal Zone Management Authority Order (O SO 1759(E) 2008, India) [Orissa CZMAO]; see ibid., ¶¶II–IX; Andaman and Nicobar Coastal Zone Management Authority Order (O SO 2058 (E) 2008, India), ¶¶II–IX. 82 Andaman and Nicobar Coastal Zone Management Authority Order, ibid. 83 See supra notes 80–82. 84 India, Ministry of Environment & Forests, Final Frontier, supra note 37 at 15–16.

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From an ICZM perspective, these institutional structures were inadequate and not sufficiently geared to meet the challenges posed by ICZM. One of the major functions of the state coastal zone management authority is to prepare ICZM plans.85 Neither the CRZ 1991 nor any other notification that created the state and union territory coastal zone management authorities provided any guidance on what these ICZM plans were to contain. In the absence of specific guidelines, it is doubtful whether these ICZM plans truly furthered ICZM. The CRZ 1991 was inadequate on several other counts as well. The law incorporated very few specific adaptive strategies to meet the dangers that emanate from the growing intensity of cyclonic storms, sea surges, and SLR, except perhaps the power conferred on the authority concerned to determine areas that are likely to be inundated by SLR and include them within Category I for protection.86 There were no provisions to protect coastal farming com­ munities and coastal agriculture, to promote capacity-building to offset the lack of adequate scientific data to support decision-making, or to facilitate the use of technology-enabled (for instance, satellite-based) monitoring and enforcement. In spite of these loopholes, and though there is no explicit recognition of the doctrine of public trust or protection for activities like fish-drying, boatparking on beaches, and net-mending and storage (all of which are integral to the beneficial enjoyment of the right to livelihood of traditional fishing com­ munities), CRZ 1991 had wide acceptance among fishermen.87 The law pro­ vided for construction or reconstruction of dwelling units between 200–500 meters from the HTL in the CRZ-III as long as it was within the ambit of tra­ ditional rights and customary use.88 The CRZ 1991 also provided that hoteliers and developers were to ensure that fencing their property did not hamper pub­ lic access to the beach and that a minimum distance of 20 meters was provided between two hotels or beach resorts so that public access to the beach was

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For instance, see Orissa CZMAO, supra note 81, ¶VI. “Annexure—I Coastal Area Classification and Development Regulations” in Aarthi Sridhar, The Coastal Regulation Zone Notification 1991, Consolidated Version Annexure 2 [Incorporating Amendments Upto 24th July 2003], ¶6(1)(i), online: Common Cause, Environment, Laws and Regulations, Water Pollution . 87 India, Report of the Public Consultation with Fisherfolks, supra note 50 at 67. 88 “CRZ-III” in The Coastal Regulation Zone Notification (N, SO114(E) 1991, India), Consolidated Version Incorporating Amendments Up to 24th July 2003, (iii), online: ICSF .

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not restricted.89 These provisions endeared the law to the fisher community, as they found themselves increasingly losing control over beachfronts. They also thought that the regulatory strategy of 500 meters was uncomplicated and easy to understand.90 3.2.1.2 Sustainable Coastal Development and the Judicial Process Protection under CRZ 1991 has proven to be fertile ground for judicial inter­ vention in India. Courts have been called upon to determine a range of issues, including the validity of amendments to the CRZ 1991 Notification91 and the setting up of a naval museum,92 a hospital,93 a sewage treatment plant,94 resorts,95 and sea link projects.96 In addition, courts strove to protect several important coastal ecosystems such as mangroves97 and wetlands,98 protect 89

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“Annexure-II: Guidelines for Development of Beach Resorts/Hotels in the Designated Areas of CRZ-III for Temporary Occupation of Tourist/Visitors, with Prior Approval of the Ministry of Environment & Forests” in The Coastal Regulation Zone Notification (N, SO114(E) 1991, India), Consolidated Version Incorporating Amendments Upto 24th July 2003, ¶7(1)(i)(ia), (ix), online: ICSF . India, Ministry of Environment & Forests, Final Frontier, supra note 37 at 11. Indian Council for Enviro-legal Action, supra note 77. Visakha SPCA v India, (2000), [2000] 6 ALT 666 (Andhra Pradesh HC) (directing the inspection of a site visited by Olive Ridley sea turtles before installing a decommissioned submarine for a museum). Citizens Interest Agency v Lakeshore Hospital and Research Centre Pvt Ltd, (2003), [2003] 3 KLT 424 (Kerala HC) (the CRZ 1991 did not apply to a manmade canal). Visakhapatnam Municipal Corporation v Gov’t of India, Ministry of Environment & Forests (16 August 2001), WP No. 25687/98 of 2001 (Andhra Pradesh HC) (commissioning of a sewerage treatment plant fulfills the mandate of the CRZ 1991). Diksha Holdings, supra note 70. Rambhau Patil v Maharashtra State Road Development Corporation (9 October 2001), WP No. 348 of 2000 (Bombay HC) [Rambhau Patil] (upholding the construction of WorliBandra sea link). The Bombay Environmental Action Group v Maharashtra (6 October 2005) WPs No. 3246 of 2004 & No. 1470 of 2003 & 2208 of 2004 (Bombay HC) (guidelines to prevent man­ groves destruction); Krishnadevi Malchand Kamathia v Bombay Environmental Action Group, (2011), [2011] 2 SCALE 133 (India SC) (directing the removal of a bund to restore the natural flow of seawater to the mangroves); Ajit D Padiwal v India, (1998), [1998] AIR 1998 147 (Gujarat HC) (failing to take action against a delinquent company despite evi­ dence of substantial degradation of mangroves by manipulating records). For instance, see The Goa Foundation v The Konkan Railway Corporation, (1992), [1992] AIR 471 (Bombay HC) (upholding the construction of a railway line through the kazhan estuarine wetlands); People United for Better Living in Calcutta-Public v West Bengal, (1993),

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coastal fisheries,99 and control marine pollution.100 S Jagannath v India,101 Goa Foundation v Diksha Holdings Pvt. Ltd.,102 Ramgopal Estates Private Limited v Tamil Nadu,103 reveals certain trends. A clean and healthy coast is essential if the right to live in a clean and healthy environment is to be enjoyed. It was to protect this interest that the Supreme Court in Indian Council for Enviro-Legal Action directed the executive to implement CRZ 1991 in earnest. The desire to defend this interest and to ensure sustainable development was taken a step further by the court in Jagannath, which directed the removal of intensive and semi-intensive aquaculture farms. However, the beneficence of this judgment was negated by the other two branches of government by enacting the Coastal Aquaculture Authority Act 2005,104 which likely had a cathartic effect on the judiciary.105 Since 2005, in

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[1993] AIR 215 (Calcutta HC) (restraining the state from reclaiming further wetlands); TN Godavarman Thirumalpad v India, (2006) [2006] INDLAW SC 123 (India SC) (upholding the demolition of aquaculture tanks as it obstructed the free flow of water into the sea). For instance, see Kerala v Joseph Antony, (1994) [1994] AIR 721 (India SC) (upholding the ban on the use of purse seine, ring seine, pelagic and mid-water trawl gear to protect the livelihood of traditional fishermen). V Elangovan v The Home Secretary, Tamil Nadu (17 September 2004) WP No. 25586 of 2004 (Madras HC) (directing immersion of clay idols only at designated disposal areas under supervision). Ordered the removal of all aquaculture industries in the CRZ, except traditional and improved traditional due to the damage caused to local ecology. S Jagannath v India, (1997) [1997] 2 SCC 87 (India SC). This judgment threw nearly 300,000 aquaculture work­ ers out of work leading to review petitions. In Gopi Aqua Farms v India, [1997] AIR 3519 (India SC), the Supreme Court declined to entertain these review petitions. Thereafter, the central government enacted the Coastal Aquaculture Authority Act, 2005, which legiti­ mized intensive aquaculture. See generally Coastal Aquaculture Authority, Compendium of Act, Rules, Guidelines and Notifications (Chennai: Coastal Aquaculture Authority, Gov’t of India, 2006). Most coastal inhabitants feel that this Act promotes unsustain­ able and ecologically damaging activities. India, Report of the Public Consultation with Fisherfolks, supra note 50 at 3. Diksha Holdings, supra note 70 (upholding a decision of the Bombay High Court which turned down an objection to the construction of a hotel on land that came within CRZ-I area due to the presence of sand dunes). In upholding a pro-development line of reasoning, the court upheld the construction of a petrochemical park in the vicinity of the Pulicat Lake, a major Ramsar site under Indian law. (2007), [2007] INDLAW 964 (Madras HC). (No. 24 of 2005, India). See generally The Coastal Aquaculture Authority Bill 2004 (No. LIV of 2004, India), state­ ment of objects and reasons, online: ICSF, Indian Legal Instruments .

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seeking to balance environmental protection with development in the coastal law context, the judicial balance seems to have tilted in favor of development. This is evident from the judicial approach in both Goa Foundation and Ram­ gopal Estates where despite a serious discrepancy in the CZMP106 and grave concerns over the setting up of a petrochemical park in an already degraded part of the coastal zone107 respectively, the courts brushed aside the concerns to favor the development projects. 108 This pro-development line of reasoning in interpreting the coastal law ignored genuine environmental considerations and is evident in several other cases as well.109 The repeated amendments that rendered the CRZ 1991 inconsistent and nugatory also did not serve the judicial process well. In sum, the judiciary, in large part, failed in its attempt to inte­ grate the two seemingly competing values of development and environmental protection under the coastal law. 3.2.1.3 The Draft Coastal Management Zone Notification, 2008 In 2004, to bring in a degree of coherence and consistency to the coastal law regime, the central government undertook a comprehensive review of CRZ 1991.110 The core recommendation of the review committee was to move the 1991 coastal law away from the regulatory model and ground it in ICZM.111 In this light, and in the wake of the 2004 tsunami, the central government decided to notify the draft Coastal Management Zone Notification, 2008 (CMZ 2008) for the whole country.112 The CMZ 2008 sought to introduce certain well-established scientific principles of CZM into Indian coastal law seman­ tics, namely, “integrated coastal zone management,”113 “integrated coastal zone management plan” (ICZMP),114 and “setback line.”115 In a marked departure 106 Diksha Holdings, supra note 70. 107 M/S Ramgopal Estates Pvt Ltd v Tamil Nadu (2 March 2007), WP (Madras HC), online: Indian Kanoon . 108 It was the Supreme Court of India that decided Goa Foundation and the Madras High Court that decided Ramgopal Estates. 109 For instance, see Rambhau Patil, supra note 96 (upholding the Worli-Bandra sea link proj­ ect, as there was substantial compliance with the law). 110 India, Report of the Committee Chaired by Prof. M.S. Swaminathan, supra note 23. 111 Ibid. at 92, ch. 4 (entitled, “Suggestions of the Committee for Integrated Coastal Zone Management”). 112 Like the CRZ, 1991, the CMZ, 2008 was also envisaged as a piece of delegated legislation to be promulgated under the Environment Protection Act, 1986. 113 Coastal Management Zone Notification 2008 (SO 1761 (E)/ 2008, India) n. 3(b). 114 Ibid., cl 3(c). 115 Ibid., cl 3(4).

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from the CRZ 1991, where the emphasis was on management through regu­ lation, the focus of the CMZ 2008 shifted to management through planning. This change was reflected in several key provisions. For instance, the definition of the term ‘coastal zone’ was broadened to include an aquatic area, in addi­ tion to the land component, practically giving effect to the concept of spatial integration.116 While the CMZ 2008 indicated new thinking on CZM, it was severely lam­ pooned by civil society as the end of the road for coastal protection and another instance of the MoEF yielding to pressure from the pro-development lobby.117 Indeed this draft notification was no improvement over CRZ 1991. Rather, some suggested, it diluted the regulatory requirements of the earlier law and opened up more pristine territory to intensive development (which may not be always sustainable). The fishing community and eight coastal states strongly opposed the notification. Consequently, in 2009, the MoEF constituted yet another committee to determine future steps concerning CMZ 2008. The com­ mittee unanimously recommended that the central government allow CMZ 2008 to lapse and that CRZ 1991, with suitable amendments, be kept as the basic framework for coastal management.118 3.2.1.4

Re-engineering the Coastal Regulation Zone Notification, 1991: The Coastal Regulation Zone Notification, 2011 The CRZ 2011 was introduced to fundamentally re-cast India’s coastal law and supersede CRZ 1991. It seeks to ensure livelihood security for fishers and local coastal communities, promote conservation and protection of the coastal environment and marine areas, and promote sustainable development based on scientific principles, taking into account natural hazards and SLR.119 The legal architecture of the CRZ 2011 draws heavily on the framework provided by the CRZ 1991. Its regulatory design operates as follows: first, it defines the area of its jurisdiction (namely, the CRZ) and provides for its classification; second, it enumerates certain general prohibitions on development activities in the CRZ (subject to exceptions); third, it regulates permissible activities in the CRZ; fourth, specific norms for development and construction activities in the different categories of the CRZ are provided; and finally, it explains its methodologies. 116 Ibid., cl 3(a). 117 Menon, Rodriguez & Sridhar, supra note 75; see also Aarthi Sridhar et al., Coastal Management Zone Notification ’08: The Last Nail in the Coffin: A Final Critique (Bangalore: ATREE, 2008) at 4. 118 India, Ministry of Environment & Forests, Final Frontier, supra note 37 at 3. 119 Coastal Regulation Zone Notification (N, SO19(E), 2011, India) pmbl [CRZN, 2011].

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Under CRZ 2011, the CRZ now includes not only the land area from the HTL to 500 meters on to the landward side along the seafront and the inter­ tidal zone, but it also includes the land area between the ‘hazard line’ and 500 meters from the HTL on the landward side of seafronts.120 Additionally, the rules provide for new elements in the CRZ,121 of which the most important is the water area and its corresponding seabed between the LTL up to the territo­ rial water limit of 12 nautical miles.122 The hazard line emerges as an important SLR management tool introduced in the CRZ 2011. The line is mapped by the MoEF through the Survey of India along the coastline of the country based on tides, waves, SLR, and shoreline changes.123 The hazard line determines the type of development that can take place both seaward and landward.124 However, dwelling units, including those of the fishers, will not be relocated even if they are located on the seaward side of the hazard line.125 In such cases, the state government has to provide these dwelling units with necessary safe­ guards from natural disasters.126 To conserve and protect coastal areas and marine waters, the CRZ area has been re-classified into five categories: CRZ-I,127 CRZ-II,128 CRZ-III,129 CRZIV,130 and CRZ-V.131 As in the CRZ 1991, the CRZ 2011 also provides for a general 120 Ibid., ¶¶(i), (iii), (iv). 121 Ibid., ¶¶(ii)–(iii); see also Ibid., ¶7(i)A(a)–(k). 122 Ibid., ¶(v). 123 Ibid., ¶5(iii). 124 Ibid., annex-I, D II 7–8. 125 Ibid., annex-I, D II 8. 126 Ibid. 127 The CRZ-I primarily includes ecologically sensitive areas and the area between the LTL and the HTL. Ibid., ¶7(i)B. 128 Areas developed up to or close to the shoreline fall under CRZ-II. Ibid., ¶7(ii). 129 Relatively undisturbed areas are considered as CRZ-III. Ibid., ¶7(iii). 130 In the CRZ 1991, the CRZ-IV comprised certain coastal stretches in the Andaman and Nicobar, the Lakshadweep and other islands. The CRZ 2011 excludes these island terri­ tories from its regulatory scope; they are instead subject to an independent legal frame­ work, the Island Protection Zone Notification. (N, SO20(E), 2011, India) [Island Protection Notification]. The CRZ-IV now primarily includes the water area from the LTL to twelve nautical miles on the seaward side and the water area of tidal water bodies from the mouth of the water body at the sea, up to the point where the tidal influence ceases to exist. CRZN, 2011, supra note 119, ¶7(iv). 131 Application of a straitjacket legal formulation throughout the country without consid­ ering the peculiar features of coastal ecosystems was bound to unleash implementa­ tion issues. This was one of the reasons that led to amendments to the CRZ 1991, as it was perceived to be too rigid. The CRZ 2011 seeks to assuage these apprehensions by introducing a new category, namely the CRZ-V, “areas requiring special consideration.”

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prohibitory scheme subject to wide exemptions.132 Furthermore, the regula­ tory scheme of the CRZ 2011 also provides specific rules regulating develop­ ment and construction activities in the different categories (for Mumbai and Navi Mumbai,133 for the coastal states of Kerala,134 Goa,135 and critically vul­ nerable coastal areas (CVCAs)136 administered by the concerned coastal zone management authority. A serious lacuna in CRZ 1991 is that it did not subject permissible activities to any clearance procedure. This regulatory oversight has been overcome in CRZ 2011.137 Another interesting feature of CRZ 2011 is that it incorporates a post-clearance monitoring mechanism.138 It is mandatory for project manage­ ment to submit biannual compliance reports to the regulatory authority con­ cerned, which are displayed on its website.139 As mentioned previously, CRZ 1991 did not provide for any enforcement mechanism, an oversight that encouraged rampant violations. To ensure effective implementation and enforcement of the coastal law, CRZ 2011 vests responsibility for monitoring and enforcement in the state and union territory coastal zone management authorities.140 To assist in this task, the state govern­ ment and union territory administrations can establish district level commit­ tees consisting of at least three representatives from local traditional coastal

The CRZ-V is subdivided into sub-category “A” (CRZ areas falling within municipal limits of Greater Mumbai, the backwaters and backwater islands of the state of Kerala, and the state of Goa) and sub-category “B”, ‘critically vulnerable coastal areas’, which includes the Sundarbans and other identified ecologically sensitive areas. CRZN, 2011, ibid., ¶7(v). 132 Ibid., ¶3. 133 Ibid., ¶¶8V1(i)A, B, 8V1(iii)(b)2, 8V1(iii)(e) & 8V1(iii)(g). 134 The high population density in coastal areas of the state of Kerala posed implementation difficulties for the CRZ 1991. Parthan v Nayarambalam Grama Panchayath, (2006) [2006] 3 KLT 734 (Kerala HC); CRZN, 2011, ibid., ¶8V 2(ii)–(v). 135 Implementation of the CRZ 1991 was always problematic in the state of Goa due to the immense potential for coastal tourism and the overwhelming dependence of coastal pop­ ulations on fishing. Analysis of satellite data of Goa’s coastal area revealed 4,553 struc­ tures in violation of the CRZ 1991 within the 200–500 meter zone. A further 2,272 illegal structures were built in the restricted zone of 100 meters along rivers with tidal influence. India, Ministry of Environment & Forests, Final Frontier, supra note 37 at 16. The CRZ 2011 contains special rules for the state of Goa. CRZN, 2011, ibid., ¶8V 3(i)–(vii). 136 Ibid., ¶8V 4(a)–(d). 137 Ibid., ¶4.2(i); see also ibid., ¶4.2(ii), (iv). 138 Ibid., ¶4.2(v). 139 Ibid. 140 Ibid., ¶6(c).

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communities, including fishers.141 To strengthen good coastal governance, the coastal law seeks to secure transparency in the working of the coastal zone management authorities, and accordingly they are required to maintain a dedicated web site where all relevant documents are to be posted.142 The most important management tool in CRZ 2011 is the CZMP. It is to be prepared by the state government or union territory administration within 24 months from the date of notification by engaging scientific institutions like the National Institute for Sustainable Coastal Zone Management.143 Moreover, it should be prepared in consultation with concerned stakeholders, including through public hearings,144 and the draft submitted to the relevant coastal zone management authority for review.145 The authority incorporates suggestions and objections received from stakeholders in the draft plan, which, together with recommendations, are to be submitted to the MoEF for approval.146 The CZMP is the blueprint that facilitates the implementation of develop­ ment activities in the CRZ. It demarcates the HTL, the LTL, and the hazard line.147 It also classifies coastal zones and buffer zones in mangrove areas and identifies tidal influenced water bodies, fishing villages and common property infrastructure in fishing communities. As well, it demarcates the water areas of CRZ-IV and the fishing zones and fish breeding areas, indicating pollution levels and facilities for rescue and natural disaster relief operations.148 Once approved, the CZMP is posted online.149 The CZMP is not a static document and is to be revised once every five years.150 3.2.1.5

The CRZ, 2011: An ICZM-friendly Law and an Adaptive Tool to Manage SLR? The CRZ 1991 was the first coastal law in India. While far from ideal, it did nev­ ertheless serve as an important step in introducing a regulatory framework for coastal zones in that country. The primary weakness of the law was that it did little to transcend the purely sectoral approach to CZM. Its implementation 141 Ibid. 142 Ibid., ¶4.2(vi). This includes the agenda, minutes, actions taken, violations, judicial orders, approved CZMPs, etc. 143 Ibid., ¶5(2), (6). 144 Ibid., annexure I, part IV. 145 Ibid., ¶5(vii). 146 Ibid., ¶5(viii), (ix). 147 See generally ibid., ¶5; ibid., annexure I. 148 Ibid., annexure I. 149 Ibid., annexure I, IV(c). 150 Ibid., ¶5(xi).

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was also abysmal, and the numerous amendments to the original notification diluted the regulatory requirements and opened up coastal zones to further development. The 2008 attempt to replace the CRZ 1991 with a new ICZM framework also came to naught, since it favoured development over environ­ mental and community livelihood considerations. It was in this context that India notified the CRZ 2011. Introduced after a series of consultations with the fishing community and other stakeholders like non-governmental organ­ isation working in the field, India’s new coastal law has several features that are relevant from an ICZM perspective. The question then is: do these new features produce an ICZM-friendly legal framework? Given that SLR poses a grave threat to the Indian coastline, it is also necessary to examine whether the coastal law facilitates adaptation to SLR. These issues are considered below. Based primarily on the regulatory scheme of CRZ 1991, the CRZ 2011 retains the general prohibitions applicable to activities that could detrimentally affect coastal ecosystems in the CRZ area, subject to exemptions that have been carved out over the years. These prohibitions include no new construction in the CRZ-I, on the seaward side of the CRZ-II or in the no development zone (NDZ) of the CRZ-III. In addition, CRZ 2011 preserves the CRZ 1991 features concerning the need to obtain environmental clearance from the MoEF, guide­ lines on setting up tourist resorts, and preservation of access rights.151 As far as the novel features of the CRZ 2011 are concerned, it spells out a pro­ cedure for clearance for activities that can be carried out in the CRZ, subject to specific time frames.152 Furthermore, it provides for post-clearance monitoring, requires submission of biannual compliance reports by project proponents, use of scientific inputs, and includes provisions that enhance transparency.153 For the first time, district-level committees with local representation assist CZM authorities in the implementation of the coastal law. Provisions for public hearings during the preparation of CZMPs enhance stakeholder participation in the CZM regime.154 At the same time, CRZ 2011 avoids some of the con­ troversial provisions of CRZ 1991, such as an exception that permitted setting up service industries in the CRZ of special economic zones, which threatened the rights of fishermen.155 The CRZ 2011 also fundamentally re-casts the CRZ 151 152 153 154 155

Ibid., annexure III. Ibid., ¶3(vi). For details on post clearance monitoring, see ibid., ¶4.2(v). Ibid., annexure I, IV (public views on the CZMP). Site Visit to M/s Mundra Port & SEZ Limited Port Site at Mundra and M/s OPG Power Gujarat Private Limited on 6th–7th December 2010’, online: MoEF .

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classification system and restricts its application to mainland India. A new legal regime has been put in place for the management of marine islands.156 Despite the experience from administering CRZ 1991 for over two decades, there are serious gaps in CRZ 2011 that can undermine its successful operation in the long-run. Rather than enacting a full-fledged CZM legislation, the MoEF persists with the strategy of managing sensitive coastal ecosystems through notification (subordinate legislation), thereby retaining wide executive powers to amend the coastal law. By this, the MoEF has re-sown the seeds of confusion that characterised the administration of the CRZ regime over the preceding 20 years. A dedicated statute on CZM would have gone a long way to ending the ad hoc approach that has characterised the Indian CZM regime.157 Apart from the limited legal remit that a subordinate legislation has, another shortcoming of CRZ 2011 is that it does little to further a principled approach to coastal and oceans management. The law identifies the need to ensure livelihood security and to promote sustainable development, and in cer­ tain provisions, it reflects the precautionary principle. However, there is no mention of other principles that advance sustainable development and man­ agement of coastal areas and resources, like the polluter pays or the intergenerational equity. Even so, the CRZ 2011 breaks new ground with its provisions to control marine pollution in the coastal zone.158 Previously, India had no comprehen­ sive regime to control this type of pollution. Although the responsibility to work with these provisions lies with CZM authorities, past experience shows that monitoring and enforcement of rules relating to the landward component of the CRZ was a difficult task for these authorities. It is therefore doubtful whether they have adequate capacity and infrastructure to monitor imple­ mentation of the new rules in relation to the seaward component of the CRZ. While the CRZ 2011 has omitted the controversial provisions relating to spe­ cial economic zones in CRZ 1991,159 it retains several contentious ones and fails to address certain critical issues, as did its predecessor. Accordingly, it contin­ ues to permit roads on stilts or pillars, even in CRZ-I areas, i.e., ecologically sen­ sitive areas, like mangroves, coral reefs, sand dunes, and the nesting grounds of

156 157 158 159

Island Protection Notification, supra note 130. For more discussion, see Ch. 7, Part 7.3. CRZN, 2011, supra note 119, ¶(IV)(a). For the text of the relevant notification, see (N SO470 (E) 2002, India).

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birds.160 This permission was granted despite strong apprehensions expressed by the fishing community that such provisions will be abused.161 The Indian economy is one of the fastest growing in the world and nuclear energy is emerging as a crucial component in its energy mix. The country has six nuclear reactors at different stages of construction, in addition to the 20 currently in service.162 Due to the easy availability of water, coastal regions are a preferred location for nuclear power plants, leading to an increased pos­ sibility of contamination of the coastal and marine environment.163 Against the backdrop of the 2011 earthquake and tsunami in Japan that caused seri­ ous damage and leakage of heavy water from the Fukushima nuclear power plant, questions are being raised in India about the safety of its nuclear power plants in the coastal regions. Of particular concern are the Koodankulam nuclear reactor164 and the Jaitapur nuclear power station in Maharashtra.165 When commissioned, the Jaitapur plant (a European pressurized reactor) will be one of the largest nuclear power-generating stations in the world.166 Interestingly, both CRZ 1991 and CRZ 2011 exclude Atomic Energy Department projects from the ambit of their regulatory requirements.167 This can have seri­ ous consequences, as it was revealed that the environmental clearance for the

160 CRZN, 2011, supra note 119, ¶3(iv)(a). 161 Staff Reporter, “Elevated Expressway Opposed” The Hindu [of India] (1 August 2010), online: The Hindu . 162 Nuclear Power Corporation of India Limited, online: NPCIL . 163 Tony George Puthucherril, “Harnessing the Atom: Strengthening the Regulatory Board for Nuclear Safety in India Based on the Canadian Experience” (2008) 26 J Energy & Nat’l Res L 553 (HeinOnline). 164 G Sundarrajan v India (31 August 2012) WP No24770 of 2011 (Madras HC) (clearing the decks for the commissioning of Units I and II of the Koodankulam nuclear power project); see also G Sundarrajan v India (6 May 2013) CA No. 4440 of 2013 (SC India) (upholding the Madras High Court decision granting clearance to the project) [Sundarrajan, 2013]. 165 “Debate: Time to Review Jaitapur?-1”, The Times of India, Video (19 April 2011), online: The Times of India . 166 Ketki Angre & Prachi Jawadekar Wagh, “Villagers Protest against Jaitapur Nuclear Power Plant” NDTV (28 December 2010) online: NDTV . 167 The Coastal Regulation Zone Notification, 1991, supra note 49, ¶2(i)(b); CRZN, 2011, supra note 119, ¶3(i)(b); see also Sundarrajan, 2013, supra note 164, ¶¶130–32 (turning down the argument that as a project of the Nuclear Power Corporation of India Limited and not of the Department of Atomic Energy, the Koodankulam nuclear power plant, located within 500 metres of HTL was a prohibited activity under CRZ Notification 1991).

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Jaitapur nuclear power station did not provide for the effects of a tsunami.168 With Fukushima as a recent example, the lack of such a provision is a serious lapse in regard to a nuclear reactor that is to be situated on the coast.169 With reference to the concept of ICZM, the centerpiece of the integra­ tion provisions in CRZ 2011 is the inclusion of territorial waters and the water area of tidal water bodies within its jurisdiction. The exercise of jurisdiction over the water space component of the coastal zone consists in controlling discharges of effluent, waste and pollution from a wide range of community and industrial activities. In this sense, the law clearly provides for spatial inte­ gration. Furthermore, CRZ 2011 adds a fifth category to the CRZ—CVCAs—to strengthen the ICZM process.170 The designation and management of CVCAs will involve fishermen and local communities in the development of inte­ grated management plans.171 Clearly, enhanced stakeholder participation in the implementation of ICZM in India is an important step forward. Though it provides for spatial integration and the preparation of integrated management plans for CVCAs, CRZ 2011 does not advance integration of the coastal management legal regime far enough. For instance, as pointed out earlier, a plethora of laws are relevant to CZM, including those applicable to fisheries, water pollution, forest management, coastal aquaculture, planning, environmental impact assessment, and disaster management.172 The CRZ 2011 does nothing to integrate this vast body of laws or their prescriptions,173 nor does it ensure cooperation and coordination of activities between the different ministries (at both the federal and provincial levels), statutory authorities, 168 Bahar Dutt, “Tsunami not Factored into Jaitapur N-plant” IBNLive (15 September 2011), Video, online: IBNLive ; see CRZN, 2011, ibid., annexure-IV. 169 Staff Reporter, “Elevation Reduces Chances of Tsunami at Jaitapur: Kakodkar” The Hindu [of India] (15 March 2011), online: The Hindu . 170 CRZN, 2011, supra note 119, ¶7(v)B. 171 Ibid. at 16, ¶4(a)–(e). 172 For instance, see The Water (Prevention and Control of Pollution) Act, 1974; Forest (Conservation) Act, 1980; Coastal Aquaculture Authority Act, 2005 and National Disaster Management Act, 2005. 173 One of the more practical ways to ensure legal integration of the different statutes is to provide rules to resolve conflicts between the different legislative prescriptions. For instance, section 6(1) of the National Environmental Management: Integrated Coastal Management Act, 2008, (South Africa) ensures overriding effect to its provisions in the event of a conflict between this law and any other legislation in relation to coastal management.

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and administrative agencies with responsibilities in the coastal zone.174 This is a significant lapse, given that CRZ 2011 extends jurisdiction over territorial waters as well. Interestingly, the Government of India has initiated an ICZM project at both national and state levels with financial assistance from the World Bank.175 The primary activities at the national level involve mapping the hazard line and ecologically sensitive areas, establishing a national cen­ ter for sustainable CZM, and building to personnel capacity.176 In the states, the project seeks to implement ICZM in Orissa (covering the coastal stretches of Paradeep to Dhamra and Gopalpur to Chilka),177 Gujarat (Gulf of Kutch),178 and West Bengal (for Digha-Shankarpur and Sagar Island, the Sundarbans).179 Many of the project areas are CVCAs identified under the CRZ 2011.180 Thus, India has adopted a cautious approach in implementing ICZM, restricting its current efforts to this narrow category, which, in due course, may be extended to other coastal states and union territories.181 Here, it seems, the emphasis has shifted to developing adequate capacity in order to subsequently implement ICZM on a grander scale. The provisions of CRZ 2011 regarding conservation and protection of coastal stretches and promotion of sustainable development are practically inadequate to respond to the effects of rising sea levels. Without a doubt, the law is weak from the perspective of adaptation to the adverse consequences of climate change, including SLR. In CRZ 1991, areas threatened by inundation were categorized under CRZ-I.182 In effect, these areas were subjected to a high 174 An important feature of the now aborted CMZ, 2008 is that it provides for the constitu­ tion of a National Board for Sustainable Coastal Zone Management. 175 India, Ministry of Environment & Forests, Press Brief, “India, World Bank sign two loan agreements for Coastal Zone Management and Remediation of Polluted Sites” (22 July 2010). 176 Society of Integrated Coastal Management, Implementation of Integrated Coastal Zone Management Project (New Delhi: SICOM, [nd]), online: MoEF [SICOM, Implementation of ICZMP]. 177 Ibid.; see also Integrated Coastal Management Society of Odisha, online: ICZMP . 178 SICOM, Implementation of ICZMP, supra note 176; see also Gujarat State Project Management Unit, online: GECICZMP . 179 SICOM, Implementation of ICZMP, ibid. 180 See CRZN, 2011, supra note 119 at 16, ¶4(b). 181 India, Ministry of Environment & Forests, Press Brief, “Society to implement India’s major Coastal Zone Management Project launched” (15 September 2010). 182 See Notification under Section 3(1) and Section 3(2)(V) of the Environment (Protection) Act, 1986 and Rule 5(3)(D) of the Environment (Protection) Rules, 1986 Declaring Coastal

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degree of protection, as little to no new construction was possible. This protec­ tive and precautionary measure has been completely abandoned in CRZ 2011. Demarcation of the hazard line is the principal methodology envisaged in CRZ 2011 to address rising waters.183 Determined on the basis of tides, waves, SLR and shoreline changes, the area under the CRZ expands if the hazard line falls beyond 500 meters from the HTL on the landward side. Once determined, no development activities are permitted in the area between the hazard line and 500 meters on the landward side, except fishing villages and their related fish­ ing facilities, infrastructure and local communities (e.g., dispensaries, roads, and schools).184 Furthermore, CRZ 2011 provides that the dwelling units of local communities, including those of fishermen, will not be relocated even if they are located on the seaward side of the hazard line. Instead, state gov­ ernments are to provide these units with necessary safeguards from natural disasters.185 In the aftermath of the Indian Ocean tsunami of 2004 and the large death toll attributed to the close proximity of fishing hamlets to the sea, the coastal state of Tamil Nadu, one of the worst affected, issued a notification to move fishing communities from the coast and to discourage settlements so as to prevent beachfront land development.186 Since then, most coastal states have discouraged fishing communities from setting up hamlets or continu­ ing habitation in close vicinity of the sea. Justifiable on the grounds of safety, this retreat strategy has been viewed with suspicion by many environmental non-governmental organizations and fishing communities. They consider the measures as an attempt to ensure that the lands are free from claims by fishing communities, in order to make them available to corporate development proj­ ects, tourism infrastructure, or special economic zones.187 Setback and hazard lines, they believe, will lead to large-scale forced evictions, ruining the lives

Stretches as Coastal Regulation Zone (CRZ) and Regulating Activities in the CRZ (N SO114 (E) 1991, India), annexure-I, n6.1(i) (entitled “Coastal Area Classification and Development”). 183 For more details, see CRZN, 2011, supra note 119, annexure I, ¶D (entitled, “Hazard mapping”). 184 Ibid., ¶¶7–8. 185 Ibid., ¶8. 186 Natural Calamities—Tsunami 2004—Housing Reconstruction Policy 2005 (GO Ms No. 172, Tamil Nadu) online: Revenue (NC III) Department . 187 Manju Menon, Sudarshan Rodriguez & Aarthi Sridhar, Coastal Zone Management Notification ‘07: Better or Bitter Fare?: A Critique (Bangalore: ATREE, 2007) at 12, online: dakshin foundation .

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and livelihoods of fishing communities.188 It is to assuage these fears that CRZ 2011 expressly provides that the dwelling units of local communities, including those of fishers, will not be relocated. The CRZ 1991 restricted new construction close to the shoreline and pro­ vided for a 200-meter NDZ in CRZ-III areas. The CRZ 2011 practically reduces the 200-meter NDZ to 100 meters, allowing construction or reconstruction of dwelling units of traditional coastal communities in this stretch of land.189 This provision essentially permits entry of people into the 100-to-200-meter zone, an area previously out of bounds to all. These changes, together with the provision not to re-settle fishers living seaward of the hazard line, mean that traditional fishers who have the least capacity to adapt to climate change and SLR will unnecessarily be put to risk. This situation could have been avoided if awareness programs had been launched to sensitize coastal communities to the dangers posed by SLR and settlement in close vicinity to the rising sea. Furthermore, CRZ 2011 could have included provisions recognising the doctrine of public trust, such as those provided in the South African National Environmental Management: Integrated Coastal Management Act, 2008.190 Such a provision could have assuaged public fears that these lands, once cleared of fishers, would subse­ quently be usurped for development projects.191 As will be seen in chapter five, the doctrine of public trust emerges as a significant bulwark against any attempt by the state to transfer public trust properties for development pur­ poses, since the property has to be maintained for particular types of uses.192 The doctrine of public trust envisions the state as trustee of all natural resour­ ces for public use and enjoyment; indeed, as trustee, the state has a legal duty to protect such resources.193 Even though both CRZ 1991 and CRZ 2011 188 Ibid. 189 CRZN, 2011, supra note 119, ¶IIIA(ii). 190 National Environmental Management: Integrated Coastal Management Act, (S Afr), No. 24 of 2008, s. 12 (state is a trustee of coastal public property) [SA, Integrated Coastal Management Act]. 191 India, Report of the Public Consultation with Fisherfolks, supra note 50 at 22. 192 Joseph L Sax, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” (1970) 68 Mich L Rev 471 at 477 (HeinOnline). 193 The doctrine of public trust in Indian environmental law is the product of judicial leg­ islation and innovation. MC Mehta v Kamal Nath, (1997) [1997] 1 SCC 388 (India SC); MI Builders v Radhey Shyam Sahu, (1999) [1999] AIR SC 2468 (India SC); KM Chinnappa v India, (2003) [2003] AIR SC 724 (India SC); West Bengal v Kesoram Industries Ltd, (2004) [2004] 10 SCC 201 (India SC); Intellectual Forum v AP, (2006) [2006] 3 SCC 549 (India SC); Fomento Resorts and Hotels Ltd v Minguel Martins, (2009) 3 SCC 571 (India SC).

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secure the right of public access to the beachfront,194 this right is not viewed through the prism of the doctrine of public trust, particularly in the new coastal law. These are significant omissions and much confusion on this count could have been avoided if the management of coastal areas were grounded in public trust. It would have been helpful if CRZ 2011 had retained the previous restric­ tions on construction of new dwellings in the CRZ-III NDZ except for local fishing facilities. Furthermore, where the hazard line is determined, new settlements in highly vulnerable areas on the seaward side of the line should be discouraged;195 moreover, existing vulnerable human habitations should be protected and, as required, re-located to higher ground, based on the rate of SLR. In this way, these vulnerable lands could still benefit traditional fishing communities by permitting fishing-related infrastructure until rising waters engulf the areas. The Coastal Management Subgroup of the IPCC identified the concepts of retreat, accommodate and protect as three broad adaptation responses to SLR.196 No one strategy is superior to the others, and the choice of one is based primarily on realities in the field. In certain cases, a combination of all three strategies may be required for optimal results. By providing that, for instance, fishing communities not be relocated, CRZ 2011 forecloses the range of options available under retreat and accommodation and casts an onerous responsi­ bility on state governments to protect dwelling units, thereby placing its faith squarely in protection options. Traditionally, state governments in India have relied on hard structures like sea walls or on armouring coastlines with rocks to protect the coastline. For instance, 332 kilometers of the state of Kerala’s 590-kilometer coastline is already encompassed by concrete sea walls.197 However, in many places along the Indian coastline, sea walls and rocks have not been able to hold their ground against an advancing sea and have also

194 CRZN, 2011, supra note 119, annexure-III, ¶I(c), (p). 195 For instance, see SA, Integrated Coastal Management Act, supra note 190, s. 25(1). It pro­ hibits or restricts the building, erection, alteration or extension of structures that are wholly or partially seaward of the coastal setback line. Ibid. 196 J. Dronkers et al., eds, Report of the Coastal Management Subgroup: Strategies for Adaption to Sea Level Rise (Geneva: IPCC, Response Strategies Working Group, 1990) at 147–48. 197 For anti-sea erosion works, see Gov’t of Kerala, Minister of Water Resources, Projects and Programmes Under the Chief Engineer—Irrigation & Administration, online: Department of Irrigation .

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triggered severe environmental impacts.198 Both agricultural and fishing com­ munities reject sea walls as they prevent rainwater runoff into the sea, lead to flooding of agricultural lands, or cut off unimpeded access to the sea for local fishermen.199 In several areas, sea walls have put an end to catamaran-based fishing.200 In short, CRZ 2011, like its predecessor, continues to be weak in operation­ alizing ICZM goals and essentially follows a pro-development paradigm. It is inadequate in terms of its prescriptions, both for implementing ICZM and in adapting to climate change. Furthermore, it provides very little normative guidance to prepare either the Indian coastline or the residents of coastal communities to adapt to current and future climate-related challenges. Moreover, the concept of hazard line management is highly flawed. In seek­ ing to protect the interests of traditional fishing communities, this law opens up the coastline to more people, placing populations with the least adaptive capacity at undue risk from rising waters. Overall, it is clear that the battle to bring coherence to the coastal law regime in India is far from over. It is only a question of time before we once again see controversies, amendments, and rancorous court battles over this narrow but vital strip where the land meets the sea. 3.2.2 Pakistan The Islamic Republic of Pakistan201 has a 990-kilometer coastline encir­ cling the northern rim of the Arabian Sea.202 This generous coastal expanse has helped the Pakistani landmass to generate a substantial maritime estate, equivalent to over 30 per cent of its land area.203 In terms of physiographic and geological characteristics, the coastal areas of Pakistan are basically a 198 See generally Sudarshan Rodriguez et al., Policy Brief: Seawalls (UNDP/UNTRS, & ATREE, 2008). 199 Ibid. at 2. 200 Ibid. 201 A. Shah Amjad, I. Kasawani & J. Kamaruzaman, “Degradation of Indus Delta Mangroves in Pakistan” (2007) 1:3 Int’l J Geology 27 at 27. 202 Pakistan Environmental Protection Agency, Brief on Environmental Problems of the Marine and Coastal Areas, online: Intervention . 203 Pakistan: National Strategy and Action Plan for Mangroves for the Future (2010) at 5, online: Mangroves for the Future [Pakistan: National Strategy and Action Plan]; see also FAO, Fishery and Aquaculture Country Profile: Islamic Republic of Pakistan (FID/CP/PAK, 2009), at 2.

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“sub-tropical desert”204 that can be divided into two sections: the Balochistan coast (760 kilometers in the Balochistan province) and the Sindh coast (230 kilometers in the Sindh province).205 The Balochistan coastal segment can be further sub-divided into Mekran (the Gwadar district) and Lasbela (the Lasbela district),206 while the Sindh coast can be apportioned into the Indus delta and the Karachi coastline.207 In coastal Balochistan, Mekran is tropical and semi-arid, fresh water sup­ plies are limited, and rainfall is scanty. As such, the soils are highly saline, which discourages the development of human settlements and agriculture.208 Consequently, Mekran is the least developed portion of the Pakistani coast­ line and is comparatively pristine. Nevertheless, with the commissioning of the Gwadar deep-sea port and a series of other projects that may soon come to fruition,209 it is expected that there will be more development in Balochistan, necessitating effective CZM. In contrast, the Lasbela segment, situated close to Karachi, houses the Gadani shipbreaking yard (which in its heyday, was one of the world’s largest ship breaking yards)210 and several other industrial estates.211 Similarly, there is sharp contrast between the Sindh portions of the coast­ line: while one section is highly developed (Karachi segment), the other (Indus delta) is pristine and highly important from a biodiversity perspective, but under severe stress. The primary economic activity in the coastal zones, along with most of the population, is concentrated in the coastal city of Karachi,212 which is the capital of the Sindh Province and the economic nerve center of 204 John C. Pernetta, ed., Marine Protected Areas Needs in the South Asian Seas Region, A Marine Conservation and Development Report, vol. 4: Pakistan (Gland: IUCN, 1993) at 1 [Pernetta, Pakistan]. 205 Pakistan: National Strategy and Action Plan, supra note 203 at 3. 206 IUCN Pakistan & Gov’t of Balochistan, Balochistan Conservation Strategy (Karachi: IUCN Pakistan & Gov’t of Balochistan, 2000) at 97. 207 Sindh Programme Office, Preliminary Compendium of Coastal and Marine Protected Areas in Pakistan (Karachi: Sindh Programme Office, IUCN-The World Conservation Union, 2005) at 11. 208 Ibid. at 10. 209 Hasan Yaser Malik, “Strategic Importance of Gwadar Port” (2012) 19:2 J Political Stud 57; “Pakistan hands management of strategic Gwadar port to China”, Reuters [Islamabad] (18 February 2013) online: Reuters . 210 IUCN Pakistan & Gov’t of Balochistan, supra note 206 at 98. 211 For more details, see Lasbela Industrial Estates Development Authority, online: LIEDA . 212 Most of the coastal areas of Pakistan are sparsely populated, except for Karachi, which has a population of about 18 million people. Ibid.

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Pakistan.213 Not surprisingly, the 70-kilometer stretch of coastline near Karachi is more developed than the rest of Pakistan’s coastal area.214 Karachi is home to one of the biggest ports in South Asia215 as well as to fishing harbors and power plants including the Karachi nuclear power plant.216 It is also a major industrial hub housing several establishments.217 The Pakistani coastline harbors several unique living and non-living resources, including mangroves, which are being degraded at an alarming rate.218 In addition, and as mentioned earlier, pollution from the shipbreak­ ing industry,219 the constant threat from oil pollution due to close proxim­ ity to some of the major and busiest shipping lanes,220 dam construction, and upstream abstraction of water221 are some of the major challenges the Pakistani coastline faces, rendering it all the more vulnerable to SLR. Like else­ where in South Asia, coastal and marine resources, particularly fisheries, play an important role in supporting the local and national economies.222 However, most of the coastal communities live below the poverty line.223 213 Official Web Portal of City District Government Karachi, online: CDGK . 214 Pakistan, Ministry of Environment, Pakistan’s Initial National Communication on Climate Change (Islamabad: Ministry of Environment, 2003) at 29 [Pakistan’s Initial National Communication]. 215 Karachi Port Trust, online: KPT . 216 See generally Zia Mian, Some Issues Associated with Pakistan’s Karachi Nuclear Power Plant (KANUPP) (Working Paper Series #51) (Islamabad: SDPI, 2000). 217 Karachi has nearly 8,000 small and large industrial units. Muhammad Yasin Janjua, Environmental Problems of Marine and Coastal Areas of Pakistan, online: SAARC Disaster Management Centre . 218 Pernetta, Pakistan, supra note 204 at 13. 219 IUCN Pakistan & Gov’t of Balochistan, supra note 206 at 104. 220 For further details, see Tasman Spirit Oil Spill—Assessment Report, online: OCHAnet . 221 The construction of dams resulted in elimination of oyster beds. IUCN Pakistan & Gov’t of Balochistan, supra note 206 at 108. 222 It provides direct employment to about 300,000 fishermen and ancillary employment to another 400,000. Mohsin-ul-Ibad Haider, Fahad Abdul Malik & Hussain Shahid Rajput, “The Fishing Industry of Pakistan” (2011) ¶4.2, online: SCRIBD . 223 Humera Alwani, “Rescuing Sindh’s coastal communities”, Dawn (24 August 2008), online: Dawn.Com (nearly 79 per cent of the coastal population of Sindh live below the poverty line.)

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Pakistan falls within the list of ten countries most vulnerable to the impacts of rising sea levels.224 Currently, SLR along the Pakistan coast is approximately 1.1 millimeters per year.225 The IPCC predicts that under a scenario of no adap­ tation measures, a 20-centimeter rise in sea level will inundate about 1,700 square kilometers of the country’s coastal land.226 It is believed that the Sindh coastal zone is more vulnerable to SLR than the Balochistan coast because of geographical factors and that the main areas of vulnerability are the coastal areas of Karachi and the Indus delta creek system.227 In the Balochistan area, the sea level is rising at a rate of 1.1 millimeters a year, which will aggravate the problem of salinity intrusion into aquifers.228 SLR is a serious problem in coastal and industrially important Karachi.229 Apart from the destruction of coastal infrastructure, rising seawater can also lead to salinity intrusion, further aggravating the water crisis. Coastal erosion has been noticed at the ports of Gwadar, Pasni and Gadani,230 and on the islands at the approaches of the creeks in the Indus delta.231 Out of nine vulnerabilities identified in the National Climate Change Policy, 2012, which affect the Pakistani coastline, three specifically are the intrusion of saline water into the Indus river delta, SLR and increased cyclonic activity due to higher sea surface temperatures, and stress between upper and lower riparians over water sharing.232 The para­ graphs below offer an overview of the dynamics of water management vis-à-vis the coastal zone by exploring the water relations between the provinces in Pakistan and how it is affecting the Indus delta, magnifying SLR impacts.

224 Amjad, Kasawani & Kamaruzaman, supra note 201 at 30. 225 Pakistan’s Initial National Communication, supra note 214 at 44. 226 Murari Lal, Hideo Harasawa & Daniel Murdiyarso, “Asia” in James J. McCarthy et al., eds, Climate Change 2001: Impacts, Adaptation, and Vulnerability: Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2001) 533 at 569. 227 Tariq Masood Ali Khan et al., “Sea Level Variations and Geomorphological Changes in the Coastal Belt of Pakistan” (2002) 25:1 Mar Geodesy 159. 228 IUCN Pakistan & Gov’t of Balochistan, supra note 206 at 99. 229 A Mashiatullah et al., “Groundwater Salinity in Coastal Aquifer of Karachi, Pakistan (A Preliminary Investigation)” (2002) 7:3–4 Sci Vision 195 at 196. Karachi is at high risk from SLR, prolonged cyclonic activity, and salt-water intrusion. Asian Development Bank, supra note 38 at 23. 230 Pakistan’s Initial National Communication, supra note 214 at 60. 231 Ibid. at 45. 232 Pakistan, Ministry of Climate Change, National Climate Change Policy (Islamabad: Ministry of Climate Change, 2012) at 2, 3 [Pakistan, National Climate Change Policy].

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River Indus is one of the world’s largest river systems, measuring about 3,180 kilometers. From its source in China, the Indus flows through India and Pakistan to the Arabian Sea.233 In Pakistan, the river flows primarily through the provinces of Punjab and Sindh. When it finally empties into the Arabian Sea, it creates the Indus river delta, which is 200 kilometers long and 50 kilometers wide and extends over an area of nearly 600,000 hectares on the border between Pakistan and India.234 It is home to nearly 900,000 people. The Indus River discharges some 200 square kilometers of water and 450 million tonnes of suspended sediment annually into the delta and the related estuary235 to create the fifth largest delta system in the world.236 It accommodates nearly 97 per cent of Pakistan’s mangroves (the remaining three per cent is in Balochistan).237 In fact, this mangrove forest system is the seventh largest in the world, and the largest in arid climates. It is home to sev­ eral unique species, such as the blind Indus dolphin.238 The most critical activity wreaking havoc on this delta and related ecosys­ tems is the large-scale abstraction of water from the river to support agriculture and other activities in the upstream areas.239 Pakistan has a vast irrigation net­ work and a significant volume of the Indus water is diverted to this network,240 pointing to the centrality of this river system in sustaining the nation.241 Due to these diversions, by the time the Indus reaches the Kotri Barrage (about 200 kilometers from the Arabian sea), the flow is woefully inadequate and can­ not support the natural ecosystems of the Indus delta.242 It has been estimated 233 For more on the River Indus, see Indus River, online: The Encyclopedia of Earth . 234 See generally Peter John Meynell & M. Tahir Qureshi, “Sustainable Management of Mangroves in the Indus Delta, Pakistan” in Davis, ed., Towards the Wise Use of Wetlands: Report of the Ramsar Convention Wise Use Project, TJ (Gland: Ramsar Convention Bureau, 1993) 113. 235 Pakistan, Fourth National Report (Islamabad: Ministry of Environment, 2009) at 10. 236 For further details, see Indus Delta, Pakistan, online: WWF . 237 R. Rajagopalan & Ahana Lakshmi, A Comparative Review of Coastal Legislation in South Asia, UNEP & GPA (May 2003) at 117. 238 For further details on delta diversity, see Indus Delta, Pakistan, supra note 236. 239 Amjad, Kasawani & Kamaruzaman, supra note 201 at 29. 240 IUCN, “Indus Delta, Pakistan: Economic Costs of Reduction in Freshwater Flows” (Case Studies in Wetland Valuation #5 (May 2003) at 3, online: CBD [IUCN, “Indus Delta, Pakistan”]. 241 Ibid.; Pakistan, Shafaq Zaheer, “Environment” in Pakistan Economic Survey 2007–08 (Islamabad: Ministry of Finance, 2008) 267 at 273. 242 IUCN, “Indus Delta, Pakistan”, ibid.

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that the freshwater flow has drastically reduced from the annual 150 million acre feet (MAF) 60 years ago to just 0.72 MAF in 2006.243 The situation is so acute that while the International Union for the Conservation of Nature esti­ mates that 27 MAF is absolutely essential to maintain the health of the delta, during the negotiations preceding the water sharing agreement entered into among the four provinces of Punjab, Sindh, Balochistan and the North West Frontier Province regarding water apportionment, Sindh was of the view that at least 10 MAF must be set aside for this purpose. However, since the other states forwarded different figures, the agreement failed to decide the matter, leaving the issue to be decided later after comprehensive studies.244 To date, the issue has eluded solution and sea water has intruded inland up to nearly 75 kilometers, severely damaging the delta and aquifers.245 The river hardly adds any sediment to the delta, with the consequence that the rates of erosion have increased considerably. For instance, in the Chan creek, erosion is calcu­ lated to be as high as 5,446 feet per year.246 In a study involving the three talukas of Keti Bunder, Ghora Bari and Kharo Chan, in Sindh Province, approximately 30,000 households incurred an aver­ age annual loss of USD70,000 in crop damage and USD45,000 from reduction in fish catch due to saltwater intrusion.247 It is estimated that nearly 28,000 people in Keti Bunder will be displaced within the next ten years due to SLR, which has already swallowed 28 out of a total of 42 settlements.248 Keti Bunder has lost significant land area to the sea.249 The large-scale destruction of the mangroves has also rendered this area highly vulnerable to cyclones and tsunamis.250 These environmental changes have triggered socio-economic tensions as well. Due to the lack of potable water, supplies are brought to Keti Bunder in tankers, which are then bought by the landlords who sell them at exorbitant

243 Sindh, Inayatullah Qureshi et al., eds, Sindh Development Review 2008–09 (Karachi: Monitoring & Evaluation Cell, 2009) at 212. 244 Pakistan Institute of Legislative Development & Transparency, Issues of Water Resources in Pakistan, 2d ed., Briefing Paper for Pakistani Parliamentarians, No. 7 (Islamabad: PILDAT, 2011) app A, ¶7 [PILDAT, Issues of Water Resources]. 245 Ibid. 246 See generally Qureshi et al., eds, supra note 243. 247 See generally IUCN, “Indus Delta, Pakistan”, supra note 240. 248 Faiza IIyas, “Karachi: Keti Bunder facing sea intrusion”, The DAWN Group [of Pakistan] (19 June 2008) online: DAWN.COM . 249 Ibid. (about 113,900 acres of land has been claimed by the sea). 250 Ibid.

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rates to the locals.251 Earlier, only 20 per cent of the population of Keti Bunder was involved in fishing.252 However, due to increased salinity intrusion and destruction of coastal agriculture (Keti Bunder used to export red rice), now nearly 80 per cent of its population is engaged in fishing.253 At the same time, to add to their woes, there has been a considerable decline in the fish stock as well. The major variety, the palla, an anadromous fish that swims up into the delta from the Arabian Sea for spawning, is disappearing fast due to the low discharge of water from the Indus.254 Increasing salinity has also affected the palla and the stock has declined from about 7,900 tons in 1959, to less than 200 metric tons in 1995.255 Despite the conclusion of the Indus Waters Treaty, 1960,256 the sharing of the Indus waters between India and Pakistan has been contentious. As stated earlier, within Pakistan itself, there have been disputes among the provinces over water sharing.257 To resolve these issues, the provinces entered into a water apportionment accord in 1991.258 In 1994, due to severe drought, the Punjab government proposed a new formula for water sharing known as “his­ torical uses” and obtained a higher reallocation.259 Since then, water sharing among the provinces has been a thorny issue. The failure of the federal govern­ ment and the provinces to ensure a steady and adequate flow into the delta can aggravate the problem of SLR in this coastal region.260 Before proceeding to examine the coastal law framework of Pakistan, it is necessary to examine how Pakistan is approaching the issue of climate change adaptation, in particular, CCCA. The growing realization that, despite its low carbon footprint, Pakistan will be one of the many countries to be seriously affected by climate change prompted this country to establish a Ministry of

251 Ibid. 252 Ibid. 253 Ibid. 254 Pakistan, Fourth National Report, supra note 235. 255 Zofeen Ebrahim, “Save the Indus Plead Delta Folk”, Inter Press Service News Agency (16 Marc h 2009) online: IPS . 256 Indus Waters Treaty, 1960, Pakistan and India, 19 September 1960, (1961) 55:3 AJIL 797 (ratifications exchanged 12 January 1961). 257 Manav Bhatnagar, “Reconsidering the Indus Waters Treaty” (2008) 22 Tul Envtl LJ 271 at 281 (HeinOnline). 258 PILDAT, Issues of Water Resources, supra note 244, app A, 37–40. 259 Ray Fulcher, “PAKISTAN: Kalabagh dam threatens livelihood of millions” Green Left (15 March 2006) online: Green Left . 260 Pakistan’s Initial National Communication, supra note 214 at 45.

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Climate Change.261 Recently, Pakistan approved a National Climate Change Policy (NCC Policy),262 which provides a framework to address some of the climate change related issues that it faces. The goal of this policy is “[t]o ensure that climate change is mainstreamed in the economically and socially vulner­ able sectors of the economy and to steer Pakistan towards climate-resilient development” and adaptation is an area of primary focus.263 Specifically, to this end, the NCC Policy identifies the following adaptation measures for the coastal zone: developing salinity tolerant crop cultivars for coastal agricul­ ture; promoting aquaculture; maintaining optimal river water flows to ensure continuity of natural processes; controlling land-based sources of pollution; maintaining marine ecosystems and fish habitats; building natural barriers, plantation and regeneration of mangroves, coastal palms and other trees to control erosion and to minimize the disastrous impacts of cyclones and tsuna­ mis; and constructing barriers to protect low-lying coastal human settlements against rising seas and cyclones.264 As far as the legal framework to protect and manage coastal areas is con­ cerned, the 1973 Constitution of Pakistan determines its contours. Apart from India, Pakistan is the only other federal polity among the coastal countries of South Asia. Since the subject of “environmental pollution and ecology”265 finds a place in the concurrent legislative list, both the federal and provincial governments can legislate on matters relating to the environment. However, in practice, it is the provinces that have enacted laws for coastal management, even though there are a large number of federal environmental laws that can apply to the coastal zone.266 The origin of ICZM in Pakistan can be traced to 261 The government renamed the Ministry of National Disaster Management as the Ministry of Climate Change. Ministry of Climate Change: Government of Pakistan, online: MOCC . 262 Pakistan, National Climate Change Policy, supra note 232. 263 Ibid. at 1. 264 Ibid. at 16. 265 The Constitution of the Islamic Republic of Pakistan, 1973, item 24. 266 Firuza Pastakia, ed., Environmental Law in Pakistan: Governing Natural Resources and the Processes and Institutions that Affect them—Federal: Part I (Karachi: IUCN, Environmental Law Programme, 2005) at 13. Some of the major environmental statutes (federal and pro­ vincial) that can apply to the coastal zone are: Pakistan Environment Protection Act, 1997; Forest Act, 1927; State Wildlife Protection ordinances of 1972 in Sindh and Balochistan; West Pakistan Mines and Mineral Development Act, 1958; Balochistan Mining Concession Rules, 1970; Ports Act, 1908; Karachi Fisheries Harbour Ordinance, 1984; Land Acquisition Act, 1894; Provincial Fisheries Ordinance; Territorial Waters and Maritime Zones Act, 1979. See Pakistan: National Strategy and Action Plan, supra note 203 at 21.

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the “International Workshop on Integrated Coastal Zone Management” orga­ nized in October 1994 in Karachi.267 The primary objective of this Workshop was “to draft guidelines for the integrated coastal zone management planning process,” and it emphasised in clear terms that ICZM is “the most imperative and immediate need for Pakistan.”268 It is on the basis of the recommenda­ tions of this Workshop that the provinces of Sindh and Balochistan enacted their coastal laws. The salience of the prescriptions of both these laws are detailed below. 3.2.2.1 The Coastal Laws of Pakistan (Sindh and Balochistan) The province of Sindh enacted the Coastal Development Authority Act (CDAA) in 1994269 and subsequently amended it in 2006.270 The mandate of this law, which extends to the coastal areas271 of Sindh, is to provide for the develop­ ment, improvement and beautification of the coastal areas in the districts of Thatta and Badin.272 The Sindh CDAA contemplates coastal management by two sets of authorities. At the apex is the Provincial government of Sindh, which has the power to provide directions on policy matters from time to time.273 In addition, it has rule-making powers to implement the purposes of the Act274 and the power to approve the master plan and the development schemes prepared by the Coastal Development Authority.275 The primary authority contemplated under the CDAA is the Sindh Coastal Development Authority.276 Subject to the general or special directions from the government, the Authority exercises thirteen major far-reaching functions277 and prepares a master plan that deals with the “development, improvement, 267 Intergovernmental Oceanographic Commission, International Workshop on Integrated Coastal Zone Management (ICZM) Organized in Co-operation with the National Institute of Oceanography, Ministry of Science and Technology, Government of Pakistan, Karachi, Pakistan, 10–14 October 1994, Workshop Report No. 114 (UNESCO, 1994). 268 Ibid. 269 Coastal Development Authority Act 1994 (No. XXVIII of 1994, Sindh) [Sindh CDAA 1994]. 270 Coastal Development Authority (Amendment) Act 2006 (No. VIII of 2006, Sindh) [Sindh CDAA, 2006]. 271 Sindh CDAA 1994, supra note 269, s. 1(3); see also ibid., s. 2(c) (defines coastal areas as the coastal areas of the districts of Thatta and Badin). 272 Ibid., pmbl. 273 Ibid., s. 4(2). 274 Ibid., s. 24. 275 Ibid., s. 12. 276 See ibid., pmbl, ss. 3(2)–(3); see also Sindh CDAA, 2006, supra note 270, s. 2. 277 For more details see Sindh CDAA 1994, supra note 269, s. 7.

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expansion and beautification” of coastal areas and development schemes for coastal areas.278 It can also acquire property279 and is vested with power to make regulations to carry out the purposes of the Act.280 To facilitate the Authority’s functioning, the Act vests its general direction and administration with a governing body,281 which is chaired by the Minister for Planning and Development Department.282 The governing body exercises all powers and can do all “acts and things” done by the Authority.283 In dis­ charging its functions, the governing body acts on sound principles of plan­ ning, development, operation, management and maintenance of coastal areas, and here the directions provided by the government guide it.284 The govern­ ing body is empowered to constitute committees like financial, technical and executive to carry out the purposes of the Act.285 Another interesting fea­ ture of the Sindh coastal law is that, on the one hand, while it contains pro­ visions to ensure accountability on the part of the Authority,286 it also has provisions that clothe the Authority with immunity from legal proceedings for acts done to further the purposes of the Act.287 After Sindh’s brush with coastal law-making, it was Balochistan’s turn. This province enacted the Balochistan Coastal Development Authority Act in 1998,288 which is modeled largely on the Sindh legislation. Subsequently, this coastal law was amended in 2001289 and in 2003.290 The Balochistan coastal law provides for coastal regulation and management at two levels. First, the Government of Balochistan is empowered to provide directions on policy

278 Ibid., ss. 12–13. 279 Ibid., ss. 14–15. 280 Ibid., s. 25. 281 Ibid., s. 5; see also Sindh CDAA, 2006, supra note 270, ss. 4, 6. 282 Sindh CDAA, 2006, ibid., s. 5. 283 Sindh CDA 1994, supra note 269, s. 4. 284 Ibid., s. 4(2). 285 Ibid., s. 8. 286 Ibid., s. 19; see also ibid., s. 18(2). 287 Ibid., ss. 21–23. 288 Balochistan Coastal Development Authority Act 1998 (No. 1 of 1998, Balochistan) [Balo­ chistan CDA 1998]. 289 Balochistan Coastal Development Authority (Amendment) Ordinance 2001 (No. XVII of 2001, Balochistan). 290 Balochistan Coastal Development Authority (Amendment) Act 2003 (No. VII of 2003, Balochistan) [Balochistan CDAA 2003].

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matters from time to time and in cases of disputes, it has to decide whether a matter falls within the realm of policy or not.291 While the Government is conferred with overarching powers for coastal administration, the key authority for coastal management in Balochistan is the Balochistan Coastal Development Authority, which is responsible for the “planning, development, preservation, monitoring, construction, opera­ tion, management and maintenance of the coastal areas of Balochistan for the purposes of fostering all resources concomitant to coastal development and for waters connected therewith or ancillary thereto.”292 The Balochistan Coastal Development Authority has corporate trappings293 and is subject to governmental directions. Furthermore, it is tasked with the implementa­ tion of wide-ranging functions,294 including the preparation of a master plan and development schemes for coastal areas.295 The Authority is also vested with a coastal development authority fund.296 Similar to the Sindh Coastal Development Authority, the Balochistan coastal law places general administra­ tion of this authority with a governing body, which can exercise all such powers and do all such acts and things as is carried out by the Authority.297 The consti­ tution of the governing body was revamped by the 2003 amendment and pres­ ently, no less a constitutional authority than the Chief Minister of Balochistan is the chairman of the governing body, an indication as to the importance the province accords to coastal management.298 In addition, the administrative secretaries of some of the major government departments of Balochistan, two members of the provincial assembly, and two nominated experts on coastal affairs are members of the governing body.299 This body is also empowered to delegate its powers, functions and duties and can constitute financial, techni­ cal, and executive committees for carrying out the purposes of the Act.300 The territorial application of this law extends to the coastal areas of Balochistan and adjoining upland areas up to 30 kilometers from the high tide water line.301 However, townships, villages, defense and other federal 291 Balochistan CDA 1998, supra note 288, s. 4(2), (3). 292 Ibid., pmbl & s. 3. 293 Ibid., s. 3(2). 294 Ibid., s. 7. 295 Ibid., ss. 12, 13. 296 Ibid., s. 16. 297 Ibid., s. 4(1). 298 Balochistan CDAA 2003, supra note 290, s. 3. 299 Ibid. 300 Ibid., ss. 8, 10. 301 Ibid., s. 1(3).

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government installations, the Lasbela Industrial Estates Development Authority, the Gaddani shipbreaking yard are excluded from its jurisdictional ambit.302 As will be explained subsequently, the exclusion of such wide areas substantially reduces the potency of this coastal law. As mentioned, the Balochistan coast is comparatively unoccupied and unspoiled. However, due to the thriving ship breaking industry, attempts have been made in certain quarters to turn the coastal regions into dumping yards for wastes including radioactive substances. In re: Human Rights Case (Environment Pollution in Balochistan)303 was a public interest litigation that came before the Supreme Court of Pakistan. Pursuant to a news item titled “N-Waste to be dumped in Balochistan,” which expressed apprehension that certain business groups were attempting to purchase coastal areas in Balochistan to dump waste materials such as nuclear wastes from developed countries, the court directed the Chief Secretary of Balochistan to inquire the matter. It was argued that dumping can affect health, the environment, marine life, and the development of ports, thereby violating article 9. Even though the records per se revealed no foul play, and no plot was allotted for dumping nuclear waste, since there was the possibility that dumping would be a clan­ destine activity carried out in the garb of a legal and proper business, the court directed the government functionaries to insert a condition into the terms of allotment that the allottee was not to use the land for dumping, treating, or destroying wastes of any nature, including industrial or nuclear waste. The concerned authority was also to obtain a similar undertaking from all those who were already allotted the land. This decision is extremely relevant from the perspective of coastal management, as it emphasized in clear terms the need to maintain and protect coastal ecosystems in Pakistan from land-based sources of pollution. 3.2.2.2 Discussion As mentioned, it was the Workshop of 1994 that set ICZM in motion in Pakistan. Nevertheless, in 2011, another Workshop on ICZM was organized and it was apparent that not much progress had been made in implement­ ing ICZM, even after the lapse of some 17 years.304 Despite this uninspiring record, it is commendable that both coastal provinces of Pakistan enacted coastal legislations, and the necessary institutional mechanisms were set up 302 Ibid. 303 PLD 1994 SC 102 (Pakistan SC). 304 Pervaiz Asghar, “Integrated coastal zone Management”, Pakistan Today (10 June 2011) online: PakistanToday .

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fairly early in the day, especially as some of the other coastal countries in the region were yet to recognize the merit and utility of a coastal statute. Both of these coastal legislations contain notable points: for instance, the Balochistan Coastal Development Authority is headed by no less a functionary than the Chief Minister of the Province. In Sindh, it is the Minister for Planning and Development. Even though both coastal statutes were largely appropriate for their time, in light of changing circumstances, they must be re-cast to attune them to new developments and, thus, to base management in an integrated format to support the pressing need for CCCA, which is critical for Pakistan. Indeed, because “Pakistan has a low institutional and financial capacity to adapt to climatic changes . . . improving adaptation capability is considered to be of the highest priority at this stage.”305 As it stands, both legislative frameworks may not further ICZM and CCCA for the following reasons: First, the concept of spatial integration, which is the central pillar of ICZM, is not expressly recognized in either coastal law. There is no provision for a seaward component in the Sindh coastal law and regulation is primarily landbased. As pointed out earlier and as will be seen in detail in chapter five, ICZM implies the holistic management of both dry and wet segments of the coastal zone. At the same time, though not expressly mentioned, it seems that the Balochistan coastal law contemplates some sort of integration between the dry and wet sides of the coastal zone. The Preamble to the Balochistan stat­ ute mentioning of “connected waters” and “land” has been defined to include the seabed below the high-water mark.306 Furthermore, the Balochistan Coastal Development Authority is also empowered to “[f]ormulate and imple­ ment policies and plans for the purpose of developing, establishing and main­ taining its coastal area and waters along the Balochistan Coast . . .”307 Despite this, the law is not amply clear with regards to the exact extent of the seaward limit. Thus, the Balochistan Coastal Act, while referring to the wet side, does not sufficiently carry the message of coastal integration forward. Another aspect of these coastal laws is that they do not contain provisions to control land-based sources of coastal and marine pollution. In fact, the Balochistan Act exempts townships, villages, defense and Federal government installations, the Lasbela Industrial Estate, and the Gaddani shipbreaking yard from its operational remit. This considerably weakens the potential efficacy of 305 Pakistan’s Initial National Communication, supra note 214 at 17. 306 Balochistan Coastal Development Authority Act 1998 (No. 1 of 1998, Balochistan) s. 2(o). 307 Balochistan CDAA 2003, supra note 290, s. 4.

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the law, given that some of the industries excluded such as the ship breaking industry, are known major polluters of the coastal and marine environment. Even though there is provision for the preparation of master plans and schemes in both statutes, the relevant provisions appear open-ended and there is no guidance in the laws on how the plans are to be prepared, and no provision for public participation in their preparation and implementation is contemplated. Again, the coastal development authorities under both statutes are top-heavy. There is no provision for female or women’s representation in these bodies. This exclusion can affect the attainment of sustainable develop­ ment goals, as women and children are the primary sufferers of climate change impacts including SLR.308 Except for the coastal city of Karachi, the coastal regions in Pakistan are comparatively free from development, and so, even in the event of SLR, it may be possible for this country to implement a retreat strategy to deal with the impacts. Taking into account the specific vulnerabilities of Karachi, it may even become necessary for Pakistan to develop, in due course, an adapta­ tion strategy for this city, where salinity intrusion into the coastal aquifers has already been reported.309 Apart from Karachi, the primary impacts of climate change and SLR on the coastal zones of Pakistan are closely intertwined with the diminished water flows into the Indus River Delta and consequent saline intrusion, as mentioned earlier. However, the coastal law of Sindh does not contain any adaptive strategy to respond to the impacts of climate change and SLR on Karachi and the Indus River Delta. These are serious omissions attrib­ utable to the fact that the law was drafted at a time when SLR and climate change were not issues of concern. Presently, the provinces have taken the lead on CZM, and therefore it may seem that the federal government has a compar­ atively lesser role to play. Nevertheless, as the number and intensity of extreme weather events hitting the Pakistani coast increases, the federal government, in coordination with the provinces, must formulate a comprehensive strategy for climate change adaptation for the coastline via ICZM.

308 For more details, see generally UN, Fact Sheet: Women, Gender Equality and Climate Change, UN Women Watch (2009); see generally UNICEF, Emma Back & Catherine Cameron, Our Climate, Our Children, Our Responsibility: The Implications of Climate Change for the World’s Children (np: UNICEF UK, 2008). 309 Mashiatullah et al., supra note 229 at 197 (identifying SLR, reduced precipitation, as pos­ sible factors that contribute to increased salinity); Our Correspondent, “Karachi at high risk from sea level rise”, Dawn (14 March 2012) online: DAWN.COM .

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3.2.3 Bangladesh One of the least developed nations in the world,310 the People’s Republic of Bangladesh is a unitary state that became independent in 1971.311 Bangladesh has a coastline of about 710 kilometers in length, rimming the Bay of Bengal. This comprises approximately 32 per cent of the country312 spread over 19 out of a total of 64 districts.313 The coastal regions have been classified into three zones (west, central, and east), each characterized by unique features.314 The exclusive economic zone (EEZ) is also treated as part of the coastal zone.315 Bangladesh is essentially the delta of the Ganges-Padma, the BrahmaputraJamuna, and the Surma-Meghna rivers, and its coastal zone is the last part of the extended Himalayan drainage ecosystem where these three mighty rivers join the Bay of Bengal.316 The entire landmass, including its coastline, is dominated by these three major river systems, which unites with several other smaller rivers to form the largest delta system in the world.317 It is estimated that the Ganges-Brahmaputra-Meghna river system carries each year more 310 International Human Development Indicators, Bangladesh: Human Development Indicators, online: UNDP Human Development Reports, Countries, Country Profiles, Country List, Bangladesh . 311 Constitution of the People’s Republic of Bangladesh, 1972, art. 1. The legal system of Bangladesh is based on English Common Law, even though its Constitution of 1972 (as amended in 1975 and 1977) reflects the Islamic character of the nation. Most of the natural resources laws that operate in Bangladesh are of British vintage, like the Forest Act, 1927, which incidentally is the centerpiece forest law of both India and Pakistan. Being a part of former Pakistan, some of its laws are inherited from Pakistan. Md Yousuf Mehedi, Controlling Pollution in the Coastal and Marine Zone of Bangladesh: Developing A Management Approach (MMM Thesis, Dalhousie University, 2001) [unpublished] at 76. 312 M.S. Iftekhar & M.R. Islam, “Managing Mangroves in Bangladesh: A Strategy Analysis” (2004) 10 J of Coastal Conservation 139. 313 M. Rafiqul Islam, ed., Where Land Meets the Sea: A Profile of the Coastal Zone of Bangladesh (Dhaka: The University Press Ltd, 2004) at 4. 314 Bangladesh, Ministry of Environment & Forest, Initial National Communication under the United Nations Framework Convention on Climate Change (UNFCCC) (Dhaka: Ministry of Environment & Forest, 2002) at 18, 22 [Bangladesh, Initial National]. 315 Officially, the coastal zone has been demarcated to include 19 districts and the exclusive economic zone. M. Rafiqul Islam, “ICZM Initiatives and Practices in Bangladesh” in R.R. Krishnamurthy et al., eds, Integrated Coastal Zone Management—The Global Challenge (Singapore: Research Publishing Services, 2008) 73 at 75 [Islam, “ICZM Initiatives”]. 316 Ibid. 317 John C. Pernetta, ed., Marine Protected Areas Needs in the South Asian Seas Region, A Marine Conservation and Development Report, vol. 1: Bangladesh (Gland: IUCN, 1993) at 2 [Pernetta, Bangladesh].

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than six million cusecs of water and more than a billion tons of sediment that is finally deposited into the coastal areas adjoining the Bay of Bengal.318 This renders the coast highly dynamic, resulting in accretions in some regions and erosion in others.319 The Bangladesh coast is home to several unique coastal ecosystems, includ­ ing the Sundarbans (the world’s largest uninterrupted stretch of mangrove forests and a designated UNESCO World Heritage Site),320 the coral island of St. Martin, the Cox Bazar beach (the world’s longest beach),321 and several islands and extensions to the mainland formed primarily from accretion (which are generally unstable and uninhabitable).322 The Bangladesh coastline is wrecked by a series of climate hazards and is often described as “a zone of multiple vulnerabilities as well as opportunities.”323 Each year, cyclones, storm surges, tornados, floods and erosion hit the country with ferocity.324 Records show that nearly 30 to 35 per cent of the total land surface of the country is inundated annually during the monsoons.325 In both 1988 and 1998, more than 65 per cent of the geographical area was inundated.326 The Bay of Bengal is referred to as “the breeding ground of 318 Ibid. at 6; see also Bangladesh, Initial National, supra note 314 at 22 (nearly 2.4 billion tons of sediments are carried per year). 319 Bangladesh, Initial National, ibid. 320 World Heritage Convention & UNESCO, The Sundarbans, online: UNESCO: WHC, The List, World Heritage List, The Sundarbans, Documents . The Sundarbans mangroves support nearly 425 species of recorded fauna, which includes 41–49 mammals, 261–270 birds, 158–177 fish, 35–63 reptiles, 8–12 amphibians and 26 molluscs. Dipak Kamal, Biodiversity Conservation in the Coastal Zone of Bangladesh (MMM Thesis, Dalhousie University, 1999) [unpublished] at 11. 321 CBD, National Reports and NBSAPs: Third National Report (Submitted by Bangladesh) at 7, online: Convention on Biological Diversity [Third National Report]. 322 Islam, ed., supra note 313 at 16–17. 323 Ibid. at 3. 324 More than a dozen tropical cyclones occur in the Bay of Bengal every year, with three or four hitting the Bangladeshi coastal zones with wind speeds of 150–240 kilometers per hour. Due to the low elevation of the deltaic plain, storm surges can penetrate as far as 100 kilometers inland. Four cyclonic storms and associated tidal bores between 1970–1997 have killed nearly 44,668,000 people. Kamal, supra note 320 at 41. 325 Nearly 80 per cent of the land gets affected by floods, which are primarily, flash floods, rain floods, monsoon floods and coastal floods. Bangladesh, Initial National, supra note 314 at 15. 326 UNEP & Regional Resource Centre for Asia and the Pacific, Bangladesh: State of the Environment Report, 2001 (Pathumthai: UNEP, 2001) at 98 [UNEP & RRCAP].

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catastrophic cyclones;”327 it is estimated that a severe tropical cyclone hits Bangladesh once every three years,328 accompanied by severe storm surges, leading to severe losses in life and property.329 Land erosion is another natural phenomenon that affects the Bangladeshi coastline. As per the 2001 census, the total population of Bangladesh is approximately 130 million, and the coastal population is about 36.8 million.330 This country is one of the most densely populated countries in the world, with density in the coastal zones much higher than in the upland areas.331 Nearly 28 per cent of the population of Bangladesh lives in the coastal areas.332 While the average population density for the entire country is 839 per square kilometer, for the coastal regions it is 743. The average population density in the exposed coast is 482 people per square kilometer and 1,012 for the interior coasts.333 There are about 6.82 million households in the coastal zone, of which 52 per cent are extremely poor.334 The official poverty indicators point out that the percentage of the population that lives below the absolute poverty line is slightly higher in the coastal zone (52 per cent) than for the whole country (49 per cent).335 Coasts play a significant role in supporting the Bangladeshi economy. The Bengali adage “Mache-Bhate Bangali,” which means a “Bengali body is made up of fish and rice,” sums up the importance of fish and fisheries in the life of Bangladeshis.336 Fishing, agriculture, shrimp farming, salt farming, and tourism (mainly domestic) are the primary economic activities in the coastal 327 Ibid. at 99. 328 Bangladesh, Bangladesh Climate Change Strategy and Action Plan 2008 (Dhaka: MoEF, 2008) at 10. 329 Bangladesh, Initial National, supra note 314 at 21. 330 Bangladesh, Ministry of Water Resources, Coastal Development Strategy: Approved at the 2nd Meeting of the Inter-Ministerial Steering Committee on ICZMP held on February 13, 2006 (Bangladesh: Water Resources Planning Organization, 2006) at 1 [Coastal Development Strategy, 2006]. 331 The population density in the coastal zones is 1,018 persons per square kilometer than in the upland areas where it is 827.4 persons per square kilometer). Kamal, supra note 320 at 3. 332 Ibid. at 1. 333 Md Golam Mahabub Sarwar, Impacts of Sea Level Rise on the Coastal Zone of Bangladesh (Masters Thesis, Lund University, Sweden, 2005) [unpublished] at 8. 334 Ibid. 335 Fourteen out of 19 coastal districts reel under extreme poverty greater than the national average. Islam, “ICZM Initiatives”, supra note 315 at 76. 336 UNEP & RRCAP, supra note 326 at 105; but see In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (2014), (Court of Arbitration), (Arbitrators: Rüdiger Wolfrum, Jean-Pierre Cot, Thomas A. Mensah, Pemmaraju Sreenivasa Rao, Ivan Shearer) ¶424 (turning down Bangladesh’s attempt to adjust the provisional equidistance

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area.337 However, the coastal fishing communities live in deep poverty. Coastal fishers generally have no land holdings, their literacy levels are dismal, and they have very limited opportunities to access credit and the market.338 More importantly, these communities are frequently exposed to a series of natural hazards like cyclones and tidal surges that seriously affect their life, security and property; that they have limited access to even minimal social security ser­ vices increases their vulnerability.339 Marine fisheries contribute significantly to total fish production and here it is the artisanal fishers that contribute the overwhelming share.340Anthropogenic and natural factors affect the health and resilience of Bangladesh’s coastal ecosystems and affect their ability to support the Bangladeshi economy. As mentioned, the Sundarbans mangroves represent nearly half of this country’s forest cover and are rich in biodiversity, providing a habitat for several species of animals and birds.341 The delta also supports coastal communities whose livelihood and well-being are intrinsically linked to the fate of the delta itself. However, since the 1970s, the Sundarbans has been in a state of progres­ sive deterioration, primarily due to the reduced inflow of fresh water in the dry season into this ecosystem. This is attributable mainly to the diversion of the Ganges waters at the Farraka Barrage in the summer months.342 Consequently, salinization has prevented the natural regeneration of mangroves and has contributed to the infectious top-dying disease of sundari, the dominant man­ grove species in the Sundarbans.343 Apart from the reduced inflow of fresh­ water, the Sundarbans also face threats from conversion of mangrove tracts for aquaculture and agriculture; pollution; poaching of wild animals like the line on the ground of dependence of its population on fishing in the Bay of Bengal due to lack of submission of sufficient evidence). 337 It is estimated that fisheries provide employment to 1.5 million rural people, and partial employment to another 11 million. Bangladesh, Initial National, supra note 314 at 14. 338 Naisruddin Md Humayun, Can Community-Based Participation of Coastal Fishers Contribute to Sustainable Management and Development of Coastal and Marine Fisheries Resources of Bangladesh? (MMM Thesis, Dalhousie University, 2004) [unpublished] at 13; Kamal, supra note 320 at 3 (nearly 68.8 per cent of the coastal population is landless). 339 Humayun, ibid. at 4. 340 The contribution of the marine fisheries ranges between 20 to 25 per cent of the total fish production, out of which the artisanal sector contributes 95 per cent. Ibid. at 10. 341 Kamal, supra note 320 at 3. 342 M. Shafi N. Islam & Albrecht Gnauck, “Threats to the Sundarbans Mangrove Wetland Ecosystems from Transboundary Water Allocation in the Ganges Basin: A Preliminary Problem Analysis” (2009) 13:W09 Int’l J Ecol Econ Stat 64 at 70–72. 343 See generally Md Saidur Rahman, “Ecology and Management of Sundarban: A Rich Biodiversity of the World’s Largest Mangrove Ecosystem” [on file with author].

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Bengal tiger, the estuarine crocodile, marine turtles and horseshoe crab; and the uncontrolled fishing and collection of prawn seedlings.344 Land-based sources of marine pollution are a major cause for concern. The major rivers (i.e., the Ganges and the Brahmaputra) carry pollutants from upstream countries (China, Bhutan, Nepal, India), which traverse the Bangladeshi heartland before being dumped into the Bay of Bengal.345 In addi­ tion, several other activities like fisheries, transport, industrial discharges, use of agrochemical fertilizers and untreated sewage also add to the pollution load. A description of some of these activities and their impact is offered below. Indeed, recent years have seen considerable industrial growth in Bangladesh, and this has had significant environmental impacts in the coastal zone. Land based sources of pollution of coastal and marine waters and related ecosys­ tems are a major problem. Bangladesh has been operating one of the larg­ est shipbreaking yards in the world at the Sitakunda region in Chittagong. It is believed that, at present, there are 32 shipbreaking yards located on a 10 kilometer stretch of the Chittagong coast offering employment to 20,000 workers.346 Like Alang in India, the shipbreaking industry in Bangladesh func­ tions in a highly “disorganized and primitive way.”347 All of the breaking takes place in the intertidal zone. Since Bangladesh is the only country that does not insist on a gas-free-for-hot-work certificate,348 a majority of deadly tank­ ers, generally not accepted in other countries, make their way into these ship­ breaking yards. With nearly 90 ships being dismantled annually, it is estimated that nearly 22.5 tons of polychlorinated biphenyls are released into the coastal environment of Bangladesh.349 The ship scrapping activities have led to the increased presence of tributyltin in fish organs.350 For a long time, Bangladesh did not have any direct law to regulate the shipbreaking industry. Following the directions of its Supreme Court, the Ministry of Environment and Forests

344 Ibid. 345 Mehedi, supra note 311 at 23. 346 Puthucherril, From Shipbreaking, supra note 33 at 27–29. 347 Md Saiful Karim, “Environmental Pollution from the Shipbreaking Industry: International Law and National Legal Response” (2010) 22 Geo Int’l Envtl L Rev 185 at 187 (QL). 348 Ibid. 349 Bangladesh, Department of Environment in Collaboration with IUCN-The World Conservation Union, Bangladesh: National Programme of Action for Protection of the Coastal and Marine Environment from Land-Based Activities, at 12, online: [Bangladesh, National Programme of Action]. 350 Kamal, supra note 320 at 62.

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(MoEF) put together the Ship Breaking and Ship Recycling Rules 2011, to regu­ late this industry.351 Other pollution intensive industries like tanneries, paper pulp manufac­ turing and textile units operate in coastal regions without proper treatment plants, contaminating the coastal environment.352 Vessel-source pollution is another pollution source, since the primary mode of transportation is the extensive network of inland waterways.353 There have been several oil spills from foreign and local ships calling at the Mongla Port that have threatened the eco-stability of the nearby Sundarbans.354 None of the coastal cities have proper sewage systems or waste treatment plants. Consequently, the sewage of nearly 36 million people living in 19 coastal districts directly or indirectly ends up in the Bay of Bengal.355 Solid waste disposal in coastal cities also makes its way into the marine environment, particularly during floods and monsoons, since landfill sites are open and there is no leachate treatment technology in place.356 The use of pesticides to expand agricultural production has increased tremendously, putting further stress on the coastal environment.357 Studies reveal that the groundwater in 61 out of 64 districts is arsenic-contaminated, and nearly 30 million people are exposed to the associated risks.358 The prob­ lem is most acute in the coastal regions, where both surface and groundwater

351 For the text, see Welcome to Ministry of Environment & Forest, online: . 352 Chandrika Sharma, “Coastal Area Management in South Asia: A Comparative Perspective” (Background Paper prepared for the South Asia Workshop on Fisheries and Coastal Area Management, 26 September–1 October 1996, Madras, India) (Chennai: ICSF, 1997) at 18. 353 Abdul Kalam Azad, Integrated Coastal Zone Management in Bangladesh: A Case for People’s Management, BIISS Papers, no. 20 (Dhaka: Bangladesh Institute of International and Strategic Studies, 2003) at 27 [Azad, Integrated Coastal Zone Management]. 354 Md Saiful Karim, “Implementation of the MARPOL Convention in Bangladesh” (2009) 6 Macq J Int’l & CEnvtl L 51 (HeinOnline). 355 Bangladesh, National Programme of Action, supra note 349 at 9. 356 Ibid. at 10. 357 Craig Meisner, Report of Pesticide Hotspots in Bangladesh, Working Paper: 41045, vol. 1 (Development Economics Research Group, World Bank, 2004) ¶1; Bangladesh, National Programme of Action, ibid. at 11. 358 Government of the People’s Republic of Bangladesh, Department of Disaster Management, Ministry of Disaster Management and Relief, Arsenic Contamination, online: Department of Disaster Management ; Hossain Shahid Mozaddad Faruque & Saiful Alam, “State of Arsenic Contamination in Bangladesh” (Paper delivered at the International Water Conference, Hanoi, Vietnam, 14–16 October 2002) at 4–5.

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resources are contaminated due to saline intrusion from the seas.359 Salinity intrusion has also contaminated the soils in coastal regions.360 Since more than 30 per cent of the net available cultivable land of Bangladesh is located in coastal areas, soil salinity detrimentally impacts food security.361 Bangladesh has an elaborate legal framework to regulate land-based sources of marine pollution. The Environment Conservation Rules, 1997, specifies stan­ dards for sewage discharge, water quality, and industrial waste discharge.362 The Territorial Waters and Maritime Zones Act, 1974 likewise empowers the government to take appropriate measures to prevent and control marine pol­ lution.363 There are several other laws that are also relevant.364 Bangladesh has also formulated a National Programme of Action for Protection of the Coastal and Marine Environment from Land-Based Activities. This document identifies 12 major factors that contribute to coastal and marine pollution, and proposes seven strategies and action programs and 12 major activities to combat landbased marine pollution.365 Although Bangladesh is one of the few countries in South Asia to have a national program of action for controlling land-based marine pollution, it must still develop a dedicated enforcement framework to support the strategies, programs and action plans it has in place to deal with this challenge to its sustainable development. For many years, the contribution of the Bangladeshi fisheries sector to national development was insignificant. In the early 1980s, as part of an ini­ tiative to popularize shrimp culture, the government allotted tidal land in the Chakaria Sundarban to the Department of Fisheries. Since then, shrimp farming has accelerated, often at the expense of mangroves, wetlands and

359 The problem of salinity intrusion is seasonal. During the rainy season, salinity is pushed back. But in the summer months, saline waters penetrate up to 130 kilometers in the lower Meghna. Bangladesh, Initial National, supra note 314 at 30. 360 Ibid. 361 UNEP & RRCAP, supra note 326 at 104. 362 The Environment Conservation Rules, 1997 (R SRO No. 197–Law/97 of 1997, Bangladesh), sch. 9. 363 (No. XXVI of 1974, Bangladesh), s. 8. 364 The Marine Fisheries Ordinance, 1983 (No. XXXV of 1983, Bangladesh) s. 28 (constitution of marine reserves), s. 29 (prohibition on fishing, dredging, etc., in marine reserves) & s. 8 (introduces licensing system for marine fishing); East Bengal Protection and Conservation of Fish Act 1950 (No. XVIII of 1950, Bangladesh) (subsequently amended in 1963, 1970, 1982, 1995 and 2002). The Environmental Policy 1992, the Forest Policy 1994, the Fisheries Policy 1995 are also relevant to coastal management. 365 Bangladesh, National Programme of Action, supra note 349.

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agricultural lands.366 While shrimp farming has benefitted the country in many ways, the reality is that its operation has exacerbated rural poverty. There have been intense and violent clashes between the owners of shrimp farms and agriculturists.367 Apart from socio-economic tensions, shrimp farming poses several environmental concerns. For instance, to facilitate the intake of tidal water, shrimp culturists have cut through the coastal embankments and built hundreds of unauthorized sluice gates, which has weakened these structures.368 Such practices raise the need for a mechanism to resolve conflicting interests relating to the use of coastal space and resources.369 Bangladesh has established a network of marine protected areas, mainly under the Bangladesh Wildlife Preservation (Amendment) Act, 1974,370 and under section 5 of the Bangladesh Environment Conservation Act, 1995, whereby the government can declare ecologically critical areas. There are eight such areas, and some of them are highly sensitive coastal ecosystems, including St. Martin’s island, the sea front of Cox Bazar and Teknaf, a 10-kilometer strip outside the Sundarbans reserve forest, and the Sonadia Island.371 Despite the network of marine protected areas, these ecosystems are under considerable ecological stress.372 Coral reefs around St. Martin’s have also been destroyed due to shell and coral collection, dynamite fishing, and recreational activities.373 The peculiar geographical features, lack of infrastructure, low socioeconomic development and widespread poverty, lack of institutional capac­ ity, and higher dependence on natural resources make Bangladesh one of the most disaster-prone countries in the world.374 Although the contribution of Bangladesh to global greenhouse gas emissions is negligible, it will be severely affected by climate change and SLR. Within Bangladesh, coastal regions will 366 Syed Mahmood Anwar, Effect of Shrimp Culture on Ecology in the Coastal Areas of Bangladesh (Term Paper, Human Landscape Ecology: MNFEL 330, 2003) at 10, 13. 367 Ibid. at 39. 368 Ibid. at 32. 369 Md Mahbub Alam, An Integrated Approach to Coastal Aquaculture and Mangrove Ecosystem Management in Bangladesh (MMM Thesis, Dalhousie University, 1996) [unpublished] at 3. 370 Third National Report, supra note 321 at 8. 371 Bangladesh, Ministry of Environment & Forests, Fourth National Report to the Convention on Biological Diversity: Biodiversity National Assessment and Programme of Action 2020 (Dhaka: Department of Environment, 2010) at 25. 372 For more details on the state of the environment of Sundarbans, see supra notes 341–44 and accompanying text. 373 Pernetta, Bangladesh, supra note 317 at 15. 374 UNEP & RRCAP, supra note 326 at 93.

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be the most affected due to its low elevation and exposure to various waterrelated hazards.375 SLR can produce various impacts on Bangladesh; the major ones are coastal land erosion, salinity intrusion, biodiversity loss and destruction of human life and property.376 In addition, SLR can increase riverbank erosion, flooding, and destruction of fisheries. SLR can lead to the inundation of one-tenth of the total land area along the coastal belt displacing nearly 10 million people.377 It has been predicted that by 2050, SLR will affect 27 million people in Bangladesh.378 The IPCC forecasts that a one-meter rise in sea level will inundate about 20 per cent of the Bangladeshi landmass. It is estimated that there will be a one-meter rise in sea level by 2100, which will inundate 17.5 per cent (25,000 square kilometers) and all of the Sundarbans.379 The economy of Bangladesh is primarily agrarian. It is predicted that SLR will adversely impact agriculture, and will damage more than a million hect­ ares of agricultural land and different varieties of rice crop380 and fodder.381 Since the population density is very high, grazing fields for cattle are rare and, generally, farmers meet their demand from the paddy fields. Any decrease in rice production will result in fodder shortage and a decline in livestock popu­ lation, aggravating rural poverty.382 SLR may also impact coastal fisheries and aquaculture.383 Due to excessive flooding of the coastline, the positions of many water channels and estuaries will be altered and salinity will spoil the habitat and breeding grounds of exotic species such as the Hilsha fish.384 Salt 375 Bangladesh, Climate Change and Bangladesh, supra note 14 at 3. 376 Md Ahad Ali, Assessment of Possible Impacts in the Coastal Parts of Bangladesh Due to Sea Level Rise and Other Effects of Global Climate Change (MMM Thesis, Dalhousie University, 2007) [unpublished] at 39 [Ali, Assessment of Possible Impacts]. 377 Ibid. at 40. 378 Asian Development Bank, supra note 38 at 25. 379 Ibid. 380 Ibid. at 42. 381 Since Bangladesh is a densely populated country, there are no specific grazing grounds and grass from paddy fields is used to feed cattle. Therefore, any decrease in agricultural production will lead to a decline in the livestock population. Ibid. at 43. 382 Abu Muhammad Shajaat Ali, “Rice to Shrimp: Land Use/Land Cover Changes and Soil Degradation in Southwestern Bangladesh” (2006) 23:4 Land Use Pol’y 421 at 426 (ScienceDirect). 383 Apart from increasing surface water temperatures that can affect shrimp, high tides may breach earthen mini-polders (ghers) that are used to produce shrimp in captivity. Ahsan Uddin Ahmed, Bangladesh Climate Change Impacts and Vulnerability: A Synthesis (Bangladesh: Climate Change Cell, Department of Environment, 2006) at 27. 384 Ali, Assessment of Possible Impacts, supra note 376 at 48–49.

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production is another major industry in Bangladesh, providing employment to millions. In the event of SLR, salt fields may be inundated, throwing large numbers of people out of work.385 These impacts can also produce severe health consequences. Increased salinity and the consequent contamination of potable water can lead to the outbreak of water-borne diseases like cholera and diarrhea, and since salinity can impact food production, it can contribute to malnutrition.386 The damage to coastal infrastructure from SLR will also be immense. Bangladesh has a vast network of coastal roads.387 In addition, as all cities in the central coastal region are connected to the capital city, Dhaka, by water­ ways, coastal flooding consequent to SLR will erode the roads and damage port facilities, coastal embankments, dykes, groins, and storm surge protection infrastructure.388 In short, climate change will accentuate the rigor of many of the existing problems and the natural hazards that this country faces. As far as adaptation to these impacts is concerned, Bangladesh has cre­ ated a climate change cell under the Department of Environment, the MoEF, to establish an integrated approach to climate risk management.389 In addi­ tion, Bangladesh has identified certain vulnerable sectors and the appropriate adaptation measures for each of them.390 Though most of these sectors are relevant to the broader issue of coastal management, as far as the specific mea­ sures (i.e., physical and institutional) are concerned, they relate to certain pri­ mary physical effects, such as saline water intrusion,391 drainage congestion,392 extreme events,393 and changes in coastal morphology.394 In addition, its National Adaptation Programme of Action of 2005 identifies fifteen measures or projects, some of which are directly related to the issue of CCCA in the con­ text of SLR.395 385 Sarwar, supra note 333 at 22. 386 Ibid. at 52–53. 387 Ibid. at 43. 388 See generally A. Ali, “Vulnerability of Bangladesh to Climate Change and Sea Level Rise through Tropical Cyclones and Storm Surges” (1996) 92 Water, Air, & Soil Pollution 171. 389 Climate Change Cell, Dep’t of Environment, Ministry of Environment and Forests (MoEF), online: Climate Change Cell . 390 Bangladesh, Initial National, supra note 314 at 57–112. 391 Ibid. at 78. 392 Ibid. 393 Ibid. at 79–80. 394 Ibid. 395 Some of the major measures envisaged are: “Reduction of Climate Change Hazards through Coastal afforestation with community participation”, “Providing drinking water

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3.2.3.1 The Coastal Management Framework Despite the magnitude of interests and reliance in coastal regions and the overarching threat of climate change and SLR, Bangladesh does not have a direct law on CZM. There are a series of legislations and other legal instru­ ments that prescribe general measures in relation to the coastal zone, the most significant of which is the Bangladesh Environment Conservation Act, 1995.396 It establishes the Department of Environment, which has discretion­ ary power to adopt measures for environmental conservation and control and to mitigate environmental pollution.397 Other laws and policies have indirect relevance to CZM,398 and Bangladesh has put in place a system for its devel­ opment and operation. In Bangladesh, CZM emanated primarily as reactive responses to several natural disasters that battered the country’s coastline.399 In this, the Bangladesh Water Development Board took the lead, but CZM efforts remained sectoral.400 CZM was initially considered as an “engineering to coastal communities to combat enhanced salinity due to sea level rise”, and “Promoting adaptation to coastal crop agriculture to combat increased salinity.” Bangladesh, Ministry of Environment and Forest, National Adaptation Programme of Action (NAPA), Final Report (November 2005) at 26–42. 396 The Bangladesh Environment Conservation Act, 1995 (No. 1 of 1995, Bangladesh). 397 Ibid., pmbl; see also ibid., ss. 3, 4. 398 Third National Report, supra note 321 at 76–77. ICZM in Bangladesh is basically policy driven, guided by a series of policy documents like the National Environment Policy, 1992; National Tourism Policy, 1992; the National Forestry Policy, 1994; the National Fisheries Policy, 1998; the National Policy for Safe Water and Sanitation 1998; the National Agricultural Policy, 1999; the National Water Policy, 1999; the Industrial Policy, 1999; the National Shipping Policy, 2000; and the National Land Development Policy, 2001. While these policy documents may not have express provisions to spur ICZM development, they assume indirect relevance. Abul Kalam Azad, Integrated Coastal Zone Management in Bangladesh: Charting out A People Based Management Framework (MMM Thesis, Dalhousie University, 2002) [unpublished] at 61. The country has signed 24 and ratified 22 international conventions/treaties/protocols relating to the environment and natu­ ral resources conservation. Ibid. at 52. Some of the prominent laws are Forest Act, 1855, Protection and Conservation of Fish Act, 1950, Territorial Water and Maritime Zones Act, 1974, Wildlife Preservation Act, 1974, Territorial Waters and Maritime Zones Rules, 1977, Marine Fisheries Ordinance, 1983, Environment Conservation Act, 1955 and Environmental Conservation Rules, 1977. Ibid. at 54. 399 It was the catastrophic cyclone and the related tidal surge of 1970, which claimed the lives of more than 150,000 people, which turned focus on the need to protect the coast from natural hazards. As possible solution, reliance was placed on the engineering paradigm, i.e., the construction of embankments and sluice gates under the coastal embankment project implemented with external funding. Azad, ibid. at 47. 400 Ibid.

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paradigm” and problems in coastal areas were addressed by constructing embankments and cyclone shelters.401 Attempts to introduce an area-specific approach began in 1977 with the establishment of the Offshore Islands Development Board.402 Thereafter, the Bangladesh National Conservation Strategy, the Coastal Environment Management Plan for Bangladesh (both in 1987), the Coastal Area Resources Development Plan (1988), the Special Parliamentary Committee on Coastal Area Development (1988–90), and a national capacity building initiative for ICZM (1997) set the stage for the devel­ opment of an ICZM process.403 The cumulative outcome of these efforts was the 1999 policy note by the government entitled “Integrated CZ Management: Concept and Issues,” which provided a conceptual foundation for ICZM.404 This was further elaborated through a Joint Mission of the Bangladesh Government, the International Development Agency, and the Netherlands Development Assistance that established the Program Development Office for ICZM in 2002 (with the Ministry of Water Resources as the lead ministry) and formulated the Coastal Zone Policy 2005.405 The Coastal Zone Policy 2005 (CZP) seeks to “provide . . . general guidance . . . for the management and development of the coastal zone . . . so that the coastal people are able to pursue their life and livelihoods within [a] secure and conducive environment.”406 Accordingly, it sets targets for priority actions and arranges for their implementation. It also provides for an assess­ ment framework. The CZP seeks to create harmony by transcending sectoral perspectives and deals with eight broad areas aimed at furthering develop­ ment objectives: economic growth for poverty reduction; enhancing liveli­ hood opportunities; vulnerability reduction; sustainable management and equitable distribution of coastal resources; empowerment of coastal commu­ nities and gender equity.407 It also calls for measures to conserve and enhance

401 UK, Department for International Development, Integrated Coastal Zone Management in Bangladesh: A Policy Review, Livelihood-Policy Relationships in South Asia: Working Paper 6 (London: DFID, 2004) at 2. 402 Islam, “ICZM Initiatives”, supra note 315 at 73. 403 Coastal Development Strategy, 2006, supra note 330 at 2. 404 Islam, “ICZM Initiatives”, supra note 315 at 74. 405 Ibid. at 83. 406 Bangladesh, Ministry of Water Resources, Coastal Zone Policy, 2005 (Government of the People’s Republic of Bangladesh, 2005) online: WARPO [Bangladesh Coastal Zone Policy, 2005]. 407 Ibid., ¶4.

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critical aquatic and terrestrial ecosystems,408 control pollution409 and adapt to climate change.410 Furthermore, the CZP provides for mainstreaming CZM by incorporating coastal development into all national strategy documents411 and by providing for development of a coastal development strategy.412 Finally, the policy emphasizes the need for an appropriate legislative framework, with the first step being the preparation of a “Compendium on the Laws Relating to and/or Having Bearing on Coastal Areas.”413 The 2006 Coastal Development Strategy (CDS) focuses on the implementa­ tion of the Coastal Zone Policy.414 The CDS does not provide an “overall frame­ work and recipe” for all development actions in the coastal zone.415 Rather, it translates the development objectives identified in the CZP into nine strategic priorities, including ensuring access to potable water; ensuring safety from manmade and natural hazards; environmental conservation; and creating an enabling institutional environment. It also identifies three strategic routes— “mainstreaming,” “investments” and “governance”—to implement the strate­ gic priority areas416 and sets the stage for the third tier of implementation. This tier is the Priority Investment Program, a program of 20 to 25 projects implemented over a five-year period417 as the responsibility of relevant minis­ tries and departments.418 One additional aspect that needs mentioning here is who (or what) is responsible for coastal management in Bangladesh. As noted earlier, three mighty rivers play an important role in stabilizing, shaping and re-shaping the country’s coastal environment. Therefore, it is only natural that the Ministry of Water Resources (MoWR) plays a lead role in coastal management by ensuring that water flow to the sea is maintained and that there is less salinity intrusion into the estuaries and other water bodies.419 The MoWR has also constructed embankments to secure the coastal zone and thus has become the primary 408 Ibid., ¶4.8.1. 409 Ibid., ¶4.8.2. 410 Ibid., ¶4.8.3. 411 Ibid. at 9. 412 Ibid. 413 Ibid. at 12. 414 Coastal Development Strategy, 2006, supra note 330 at 4. 415 Ibid. 416 Ibid. at 7. 417 Ibid. at 49. 418 Ibid. 419 Ministry of Water Resources, online: MoWR ; M. Rafiqul Islam, “Bangladesh’s ICZM Efforts in Practice” in Robbert Misdorp, ed., Climate of

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agency to implement ICZM in Bangladesh. In addition, several other minis­ tries and departments have responsibilities in the coastal zone and administer programs relevant to an ICZM process. For instance, zoning, which is an inte­ gral part of ICZM, falls within the domain of the Ministry of Land,420 while the MoEF deals with environmental aspects of ICZM.421 3.2.3.2 Discussion Despite its rapid strides in operationalizing ICZM, there are some significant flaws in the Bangladeshi approach to ICZM and CCCA. Clearly, Bangladesh will be severely affected by climate change and SLR and this requires that the coun­ try develop systems and measures to facilitate CCCA. This is no easy task, as the peculiar geographic features, high population density and widespread pov­ erty make implementation of many CCCA measures, particularly, the retreat strategy difficult.422 Again, as part of coastal adaptation efforts, nearly 4,800 kilometers of existing coastal defenses need re-calibration, while an additional 4,000 kilometers have to be newly created, costing nearly a billion dollars, which is beyond the financial capacity of this impoverished nation.423 The preceding discussion points out that Bangladesh has not yet enacted a specific legislation for ICZM. Though it recognizes that “[s]etting the appropri­ ate legislative framework is fundamental to effective implementation of the CZP,”424 the CZP is implemented, and the obligation to protect the coastal envi­ ronment is, as of now, pegged to a diffused legal framework. According to one estimate, this includes a minimum of 90 laws.425 Seeking to implement ICZM through such a fragmented legal framework is not an appropriate approach for Bangladesh, given the anticipated impacts of SLR. To date, there has only been Coastal Cooperation (Leiden: Coastal & Marine Union—EUCC, 2011) 64 at 64 [Islam, “Bangladesh’s ICZM”]. 420 The Ministry of Land is implementing a Coastal Land Zoning Project. Ministry of Land, Coastal Land Zoning Project, online: Ministry of Land . 421 Welcome to Ministry of Environment & Forest, supra note 351. The Bangladesh Forest Department under the Ministry of Environment and Forests plays an important role in conserving mangrove forests like the Sundarbans. Natural Mangrove Forests, online: Bangladesh Forest Department, Forest Type, Mangrove Forests . 422 Mehedi, supra note 311 at 106. 423 Ali, Assessment of Possible Impacts, supra note 376 at 45. 424 Bangladesh Coastal Zone Policy, 2005, supra note 406 at 12. 425 Bangladesh, Ministry of Water Resources, Coastal Development Strategy (Dhaka: Water Resources Planning Organization, 2006) at 45.

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debate about umbrella legislation on coastal management. The lack of legally ordained integration between the various ministries and departments tasked to implement different aspects of CZM has led to conflicts, and this is perhaps the biggest bottleneck to efficient coastal management. As pointed out, there are several ministries and departments that have duties relevant to coastal management.426 The presence of such a vast array of administrative authori­ ties with jurisdiction over the coastal zone has led to challenges. For instance, conflicts have been reported between the Ministry of Land and the Ministry of Environment over administration of water bodies and between the Ministry of Fisheries and the Department of Forest over fisheries management in the Sundarbans.427 ICZM is a complex process that requires integrated decisionmaking, something that is generally difficult to secure in countries that have very poor inter-departmental coordination, as different government depart­ ments zealously guard their turf. ICZM is all about compromises and tradeoffs, and when it is legally mandated, the parties involved will have to come together, discuss, develop and implement solutions collectively. However, as things stand, the present institutional arrangement in Bangladesh is inad­ equate to further this objective.428 Not only is there mistrust and conflict between government departments, but there have also been conflicts between the different stakeholders. Conflicts have been reported between the shrimp culturists and local communities, and some of these conflicts have turned vio­ lent and fatal.429 One major reason for these conflicts is the lack of a dedicated statute on coastal management to articulate rights and corresponding duties. Like most of its counterparts in South Asia, ineffective governance, lack of effective institutions and widespread corruption plagues Bangladesh. The CZP emphasizes socio-economic development, eradication of poverty, and gender equity, which are indicative of the general socio-economic situation. CZM is 426 Kamal, supra note 320 at 83. 427 Azad, Integrated Coastal Zone Management, supra note 353 at 79. 428 Golam Rabbani, A. Atiq Rahman & Nazria Islam, “Climate Change and Sea Level Rise: Issues and Challenges for Coastal Communities in the Indian Ocean Region” in David Michel & Amit Pandya, eds, Coastal Zones and Climate Change (Washington, DC: The Henry L. Stimson Center, 2010) 17 at 23 (the Bangladeshi coast is an area of institutional weakness). 429 In a two-decade span nearly 150 people have been killed and thousands injured in shrimprelated violence. M. Rafiqul Islam, “Managing Diverse Land Uses in Coastal Bangladesh: Institutional Approaches” in C.T. Hoanh et al., eds, Environment and Livelihoods in Tropical Coastal Zones: Managing Agriculture-Fishery-Aquaculture Conflicts, Comprehensive Assessment of Water Management in Agriculture Series, vol. 2 (Oxon: CABI, 2006) 237 at 242.

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viewed as a broad program that can eradicate poverty, enhance livelihoods, and improve governance.430 Clearly, a CZM framework has to be situated within the larger socio-economic challenges that confront a country. However, to be successful, its mandate has to be narrower and more realistic. By provid­ ing a sweeping mandate to its CZM program in the absence of a dedicated coastal law to support the same, it seems that Bangladeshi policy-makers are being overly ambitious. Admittedly, a CZM program cannot be oblivi­ ous to socio-economic realities, and it must address larger issues of poverty removal. Indeed, CZM cannot be a substitute for direct attention to underlying socio-economic problems that face a country. The fact is that ICZM planning and management constitute a sub-set of broader developmental plans and programs. It must be noted also that coastal management efforts in Bangladesh are not well documented and analyzed, thus preventing their use in future endeavors. As well, ICZM operates in Bangladesh on the basis of specific projects that are funded primarily by international agencies and foreign governments.431 Once the project or the funding ends, it is unclear whether any efforts are expended to build on the experience gained.432 This is a serious failure in current coastal management in Bangladesh, and it has prevented its growth and maturation. 3.2.4 Sri Lanka Separated from the Indian subcontinent by the Palk Strait, the unitary Democratic Socialist Republic of Sri Lanka433 has the unique distinction of being the first Asian country to have a well-defined CZM program.434 Sri Lanka is an island nation with 1,620 kilometers of coastline435 and an EEZ of 533,000

430 Coastal Development Strategy, 2006, supra note 330 at 2. Eleven coastal districts have low gender disparity. M. Rafiqul Islam, “ICZM Initiatives and Practices in Bangladesh” in R.R. Krishnamurthy, eds, Integrated Coastal Zone Management—The Global Challenge (Singapore: Research Publishing Services, 2008) 73 at 76. 431 Islam, “Bangladesh’s ICZM”, supra note 419. 432 Ibid. 433 The Constitution of the Democratic Socialist Republic of Sri Lanka, 1978, arts. 1, 2 [Sri Lanka Constitution]. 434 K. Lowry & H.J.M. Wickremeratne, “Coastal Area Management in Sri Lanka” in E.M. Borgese, N. Ginsburg & J.R. Morgan, eds, Ocean Yearbook 7 (Chicago: The University of Chicago Press, 1988) 263 at 264. 435 Leslie Joseph, National Report of Sri Lanka on the Formulation of a Transboundary Diagnostic Analysis and Strategic Action Plan for the Bay of Bengal Large Marine Ecosystem Programme, at 16, online: Bay of Bengal LME .

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square kilometers, which is eight times larger than its land area.436 Fourteen (grouped into five maritime provinces) out of the 25 districts (grouped into nine provinces) are located on the coasts.437 The capital city of Colombo, the major railway line and national highway are also situated on the coasts. The coastal areas make significant contributions to the national economy, which is expanding, as evidenced by the increasing migration of people to coastal areas and consequent economic activity.438 The total population of Sri Lanka is 20 million (14 million Sinhalese and three million Tamils),439 and the coastal regions accommodate nearly 8.4 million.440 Nearly 65 per cent of the urbanized land area, 17 per cent of agricultural lands and 20 per cent of home gardens are located in the coastal zones.441 The coastal region is also an industrial hub, with 80 per cent of all industrial units.442 Another important driver of the economy, tourism, is mainly coastal-based.443 Tropical Sri Lanka is rich in coastal and marine biodiversity; however, as will be seen below, these ecosystems and resources are under considerable stress. Coastal and marine pollution is on the rise in Sri Lanka, exacting a cost in terms of human health.444 The large numbers of rivers that flow down to the coasts carry huge pollution loads from inland areas. Apart from the dumping 436 UK, Department for International Development, Integrated Coastal Zone Management in Sri Lanka: A Policy Review (Livelihood-Policy Relationships in South Asia, Working Paper No. 4) by Mark Aeron-Thomas, at 1 (UK: DFID/IIED/MRAG/ University of Leeds/Overseas Development Group, [nd]) [Aeron-Thomas, Integrated Coastal Zone Management]. 437 Joseph, supra note 435 at 5; see also Sri Lanka Constitution, supra note 433, art. 5 & sch. I. 438 Ministry of Environment & Natural Resources & UNEP, Sri Lanka Environment Outlook: 2009 (Sri Lanka: MENR–SL & UNEP, 2009) at 37 [Sri Lanka Environment Outlook: 2009]. 439 UNDP, Sri Lanka Human Development Report: Bridging Regional Disparities for Human Development (Sri Lanka: UNDP, 2012) at 2 [UNDP, Sri Lanka Human Development Report]. 440 K.W.G. Rekha Nianthi & Rajib Shaw, “Climate Change and its Impact on Coastal Economy of Sri Lanka” in R.R. Krishnamurthy, eds, Integrated Coastal Zone Management—The Global Challenge (Singapore: Research Publishing Services, 2008) 585 at 587. 441 Sri Lanka, Ministry of Environment, Sri Lanka’s Second National Communication on Climate Change (Sri Lanka: Climate Change Secretariat, 2011) at 3 [Sri Lanka, Second National Communication]. 442 Ibid. 443 Nearly 70 per cent of all hotels registered with the tourism board are situated on the coasts. Coast Conservation Department, Revised Coastal Zone Management Plan, Sri Lanka 1997, Rev ed (Colombo: Coast Conservation Department of the Ministry of Fisheries & Aquatic Resources Development, 1997) at 43 [Revised Coastal Zone Management Plan, 1997]. 444 Sri Lanka, Coast Conservation Department, Coastal Zone Management Plan, Sri Lanka 2006 (Colombo: Coast Conservation Department of the Ministry of Fisheries and Aquatic Resources Development, 2006) ¶4.1.1, online: Coast Conservation Department,

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of industrial effluents,445 pesticide residues and coconut husk retting446 have also adversely affected coastal waters. Another major pollutant is the discharge of untreated municipal sewage, which results in fecal contamination.447 Waste disposal also poses problems to the coastal environment.448 Coastal aquifers are being contaminated by leachate of fertilizers, heavy metals, extensive use of pit latrines, and agricultural run-off.449 In addition, over-extraction of groundwater has resulted in saline intrusion into the aquifers450 and ballast water discharged by ships has introduced invasive species.451 Sandwiched between two busy shipping lanes, Sri Lanka has three major ports in Colombo, Hambantota and Trincomalee, a regional port in Gallee, and a few minor ones.452 There have been several oil spills in these ports, and the beaches have been polluted by the accumulation of tar balls.453 This has occurred even though Sri Lanka enacted the Marine Pollution Prevention Act, 1981, to regulate pollution from oil and other pollutants generated from sea or land-based sources.454 It also adopted a National Oil Spill Contingency Plan, which spells out emergency procedures in the case of an oil spill.455 The fishing sector is of crucial importance to the Sri Lankan economy.456 While coastal fisheries are the dominant sector, the offshore fishery is the

Downloads, Acts & CZMP [Coastal Zone Management Plan, Sri Lanka 2006]. 445 Ibid. 446 Revised Coastal Zone Management Plan, 1997, supra note 443 at 71. 447 Coastal Zone Management Plan, Sri Lanka 2006, supra note 444, ¶4.2.1. 448 Revised Coastal Zone Management Plan, 1997, supra note 443 at 71. 449 Coastal Zone Management Plan, Sri Lanka 2006, supra note 444, ¶4.2.1. 450 Revised Coastal Zone Management Plan, 1997, supra note 443 at 53. 451 W.U. Chandrasekara & M.A.S.T. Fernando, “Accidental Introduction of Alien Plankton into the Sri Lankan Coastal Zone through Ballast Water of Cargo Ships” (2009) 14 Sri Lanka J Aquatic Sci 87 at 88. 452 Sri Lanka Ports Authority, online: Sri Lanka Ports Authority . 453 Coastal Zone Management Plan, Sri Lanka 2006, supra note 444, ¶3.2.1. 454 Marine Pollution Prevention Act, 1981 (No. 59 of 1981, Sri Lanka). 455 National Oil Spill Contingency Plan, online: Marine Environment Protection Authority, NOSCOP . 456 Apart from earning valuable foreign exchange, it provides direct employment to about 150,000 people, and indirectly sustains close to a million. Jinie D.S. Dela, Fourth Country Report from Sri Lanka to the United Nations Convention on Biological Diversity (2009) at 35 (provides livelihood to 2.4 million people); Sri Lanka, Second National Communication, supra note 441 at 19.

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fastest growing.457 For a long time, beach seining dominated coastal fisheries, but its significance declined with the mechanization of fisheries.458 Generally conducted in bays and in calm waters, beach seining requires large tracts of beach land for manually hauling the net and for drying the nets and fish.459 With the development of coastal tourism, the traditional rights enjoyed by the artisanal sector regarding public access to land on beaches and lagoon fronts has been denied at several places, resulting in conflicts.460 Coastal fisheries have also been affected by increasing levels of pollution due to higher industrialization in the coastal zone, and aquaculture operations have ruined local coastal environments.461 Pond water from shrimp farms is often discharged into adjoining waters, affecting lagoon fishing and leading to salinisation of wells.462 Mangroves and agricultural lands have been converted to facilitate shrimp culture, and these actions have triggered a host of other environmental problems.463 In 1961, a series of protected areas was established under the Fauna and Flora Protection Ordinance, 1937 (as amended).464 This law provides for six categories of protected areas, including marine sanctuary and nature reserve. The Ordinance has provisions to protect certain categories of animals and plants, including threatened species of corals, fish, turtles, and all marine mammals found in Sri Lankan waters.465 In addition, the government can declare “fisheries management areas” and “special area management” under the Fisheries and Aquatic Resources Act, 1996.466 Despite these laws, protection of marine and coastal areas exists mainly on paper due to the lack of effective implementation.467 457 Sri Lanka, Ministry of Fisheries & Aquatic Resources, Ten Year Development Policy Framework of the Fisheries and Aquatic Resources Sector 2007–2016 ([np], March 2007) at 4. 458 Coastal Zone Management Plan, Sri Lanka 2006, supra note 444, ¶5.2.2. 459 Ibid. 460 Ibid. 461 Ibid., ¶3.1.2. 462 Aeron-Thomas, Integrated Coastal Zone Management, supra note 436 at 7. 463 Coastal Zone Management Plan, Sri Lanka 2006, supra note 444, ¶5.2.3. 464 Fauna and Flora Protection Ordinance, 1937 (No. 2 of 1937, Sri Lanka), as amended by Fauna and Flora Protection (Amendment) Act, No. 49 of 1993, s. 3. 465 For instance, see Fauna and Flora Protection Ordinance, 1937 (No. 2 of 1937, Sri Lanka) s. 6A(1). 466 (No. 2 of 1996, Sri Lanka), s. 31. 467 Nishan Perera & Asha de Vos, “Marine Protected Areas in Sri Lanka: A Review” (2007) 40 Envt Mgmt 727 at 734–35.

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Tropical Sri Lanka will also be severely affected by SLR, particularly through coastal erosion along the western and southwestern coasts.468 Apart from nat­ ural factors, human activities like sand and coral mining and the construction of hard structures to prevent erosion have amplified the problem. For decades, Sri Lanka has invested considerable resources in the construction of coastal defense structures. These attempts to reduce erosion in one area have often aggravated erosion in others.469 It is estimated that the Sri Lankan coastline recedes, on average, three meters every year.470 Sand mining on beaches or in rivers is one of the primary reasons for coastal erosion in Sri Lanka as this decreases the presence of coastal sediments. Most construction activity is concentrated in the northwestern, western and south­ ern provinces, and it is in these areas that the problem of sand mining is acute and, consequently, so is erosion.471 Sand mining poses other environmental problems, including lowering of riverbeds, causing water levels to drop below sea level and resulting in seawater intrusion.472 Sri Lanka enacted the Soil Conservation Act in 1951 to prevent and mitigate soil erosion.473 It empow­ ers the Minister to declare “erodible areas”474 and issue regulations for their management.475 The Mines and Minerals Act, 1992, while granting licenses for mining, requires the license holder to restore and rehabilitate the land on which the exploration or mining is carried out.476 In 2005, Sri Lanka formu­ lated a “National Policy on Sand as a Resource for the Construction Industry,”477 which outlines several management and regulatory principles for sand mining from rivers. It also provides rules for sand mining from coastal ecosystems like coastal dunes.478 Another catalyst that has contributed to the increasing rate of coastal ero­ sion is coral mining for the construction industry.479 Although coral mining has existed in Sri Lanka for a long time, it was confined mainly to certain relic 468 Revised Coastal Zone Management Plan, 1997, supra note 443 at 13. 469 Ibid. at 17. 470 Sharma, supra note 352 at 5. 471 Revised Coastal Zone Management Plan, 1997, supra note 443 at 22. 472 Sri Lanka Environment Outlook: 2009, supra note 438 at 61. 473 (Nos. 25 of 1951 & 29 of 1953, Sri Lanka), pmbl. 474 Ibid., s. 3. 475 Ibid., s. 4. 476 Ibid., s. 61. 477 Sri Lanka, Ministry of Environment, National Policy on Sand as a Resource for the Construction Industry—2005 (Draft), online: ELAW . 478 Ibid., ¶4.2.1. 479 Coastal Zone Management Plan, Sri Lanka 2006, supra note 444, ¶2.2.2.

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reefs. The recent construction boom has seen an increase in coral mining, contributing to erosion.480 In response, the government has banned the min­ ing of sea coral,481 resulting in a decline in the quantity mined,482 but illegal mining involving the use of several destructive practices continues.483 SLR is projected to reach one meter by 2070.484 Since the topography in the coastal regions is basically flat, the natural drainage path is ineffective, leading to severe flooding of the coastal regions. SLR is expected to magnify coastal flooding.485 Salinity intrusion into groundwater sources in the northern dry coastal districts,486 loss of coastal wetlands,487 and damage to existing sea defense structures and near-shore infrastructure488 are some of the possible impacts indentified. As part of developing its adaptation strategy, the Climate Change Secretariat,489 established under the Ministry of Environment to provide a comprehensive national approach to address challenges related to climate change, has developed a National Climate Change Adaptation Strategy, with assistance from the Asian Development Bank.490 This document is structured around five strategic thrust areas;491 within each of these, thematic areas of action are specified along with priority adaptation measures.492 In addition, Sri Lanka has in its “Second National Communication on Climate Change” identified certain specific adaptation measures, such as preparation of a 480 Revised Coastal Zone Management Plan, 1997, supra note 443 at 22. 481 Coast Conservation Act 1981 (No. 57 of 1981, Sri Lanka) [Sri Lanka CCA 1981], as amended by Coast Conservation (Amendment) Act 1988 (No. 64 of 1988, Sri Lanka) s. 8 [Sri Lanka CCAA 1988] (inserts 31A(1), 31C, into the Sri Lanka CCA 1981); see also Coast Conservation (Amendment) Act 2011 (No. 49 of 2011, Sri Lanka) s. 29 [Sri Lanka CCAA 2011] (inserts sec­ tion 31BB, into the Sri Lanka CCA 1981). The new section prohibits the mining of sea corals within or outside the coastal zone. Ibid. 482 Coastal Zone Management Plan, Sri Lanka 2006, supra note 444, ¶2.2.2. 483 Ibid. 484 Nianthi & Shaw, supra note 440 at 591–95. 485 Sri Lanka, Second National Communication, supra note 441 at 91. 486 Ibid. 487 Ibid. at 92. 488 Ibid. 489 Climate Change Secretariat, online: Climate Change Secretariat . 490 National Climate Change Adaptation Strategy for Sri Lanka 2011 to 2016: Final Draft (2010), online: Climate Change Secretariat . 491 Ibid. 492 Specifically, the document identifies integrated coastal resource management as a prior­ ity adaptation measure. Ibid. at 22.

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groundwater extraction regulation policy, incorporation of climate change concerns in town and country planning and wetland conservation programs, preparation of set-back lines taking into account SLR, and introduction of salinity-tolerant crops.493 3.2.4.1 Sri Lanka’s Coastal Law Prior to Sri Lanka’s independence in the 1920s, there was growing interest in coastal issues, triggered primarily by coastal erosion.494 The initial emphasis was on hard engineering solutions.495 In 1963, a Coast Protection Unit was set up under the Colombo Port Commission, which, in 1978, evolved into the Coast Conservation Division, which at present is a Department under the Ministry of Fisheries and Aquatic Resources.496 To develop a comprehensive approach to CZM, the Coast Conservation Division lobbied for the establishment of a legislative framework, which ultimately led to the Coast Conservation Act, 1981 (CCA).497 Even though at its enactment the CCA was ahead of its time, in due course, it was increasingly felt that the Act required a substantial re-write to retain relevance. The CCA has been amended twice and the recent amendment almost over­ hauled the coastal law of Sri Lanka.498 In fact, after this amendment, the law was renamed the Coast Conservation and Coastal Resource Management Act (CC&CRMA) and its ambit considerably broadened to include not only coast conservation but also coastal resources management.499 The CC&CRMA calls for four main actions: (1) carry out a survey of the coastal zone; (2) based on this survey, prepare a coastal zone and coastal resource management plan (CZ&CRMP); (3) regulate and control development activities in the coastal zone via a permit system; and (4) formulate and execute work schemes for coastal conservation and coastal resources management.500 To achieve these objectives, it vests the “administration, control, custody and management” of the coastal zone with the Republic,501 which in turn carries out these responsibilities through the two sets of authorities: the “Director-General of 493 Sri Lanka, Second National Communication, supra note 441 at 93. 494 Revised Coastal Zone Management Plan, 1997, supra note 443 at 12. 495 Ibid. 496 Ibid. at 2. 497 Sri Lanka CCA 1981, supra note 481. 498 Sri Lanka CCAA 1988, supra note 481; Sri Lanka CCAA 2011, supra note 481. 499 Sri Lanka CCAA 2011, ibid., s. 3(d). 500 Sri Lanka CCA 1981, supra note 481, ss. 11, 12, 14 & 20; see also ibid., s. 2. 501 Sri Lanka CCA 1981, ibid., s. 2.

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Coast Conservation and Coastal Resource Management” (Director-General), which is primarily responsible for the administration and implementation of the CC&CRMA,502 and the “Coast Conservation and Coastal Resource Management Advisory Council” (the Advisory Council),503 which advices on,504 and also reviews the CZ&CRMP and environmental impact assessments and forwards recommendations to the Director-General.505 Apart from these two authorities, the Minister in charge of coastal conservation is empowered to make regulations to enforce certain provisions of this statute506 and has the power to declare affected areas, beach parks, conservation and special man­ agement areas, and to formulate regulations relating to their administration,507 and to appoint certain members to the Advisory Council.508 Wide powers are conferred on the Director-General to work the CC&CRMA. The Director-General has the responsibility to formulate and execute coast conservation schemes;509 prepare and implement the CZ&CRMP;510 and dis­ seminate information, tender advice and offer guidance on coast conservation and coastal resource management to the general public and to other depart­ ments, agencies and institutions.511 In addition, the Director-General cocoordinates the activities of other departments, institutions and agencies that relate to the coastal zone, including the conduct of research.512 The DirectorGeneral can delegate any of his/her powers to Divisional Secretaries or to pre­ scribed officers. In comparison to the earlier provision, the amended section now provides for a wider delegation.513 502 Ibid., ss. 3, 4. 503 The 2011 amendment to the coastal law has completely revamped the constitution of the Coast Conservation and Coastal Resource Management Advisory Council. Sri Lanka CCAA 2011, supra note 481, s. 7. 504 Sri Lanka CCA 1981, supra note 481, ss. 6–10. 505 Ibid., s. 7. 506 Ibid., s. 32; see also Sri Lanka CCAA 2011, supra note 481, s. 12. 507 Sri Lanka CCAA 2011, ibid., s. 19. 508 Ibid., s. 7. 509 Sri Lanka CCA 1981, supra note 481, s. 4(b); see also Sri Lanka CCAA 2011, ibid., s. 5(2)(g). 510 Sri Lanka CCAA 2011, ibid., s. 5(2)(d). The Director-General is to cause a survey of all resources and activities within the coastal zone and is to publish a report on the same. Sri Lanka CCA 1981, ibid., s. 11; see also Sri Lanka CCAA 2011, ibid., s. 8. The Director-General is tasked with the duty to prepare a coastal zone and coastal resources management plan based on the survey results within three years. Sri Lanka CCA 1981, ibid., s. 12; Sri Lanka CCAA 2011, ibid., s. 9. 511 Sri Lanka CCAA 2011, ibid., s. 5(2)(e). 512 Ibid., s. 5(2)(c) & (f). 513 Ibid., s. 6 (replaces section 5 of the Sri Lanka CCA 1981).

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In administering the CC&CRMA, the Director-General is to cause a survey of all the resources and activities in the coastal zone and prepare a report514 on the basis of which the CZ&CRMP is prepared.515 This document is revised once every five years.516 As is presently conceived, after the 2011 amendment, the CZ&CRMP emerges as a detailed blue print for managing the coastal zone covering many areas. It includes guidelines for coastal resources manage­ ment and a comprehensive program for the conservation of coastal resources targeted towards sustainable development.517 To maintain “long term stabil­ ity, productivity and environmental quality of the coastal zone,”518 develop­ ment activities therein are subjected to a permit system administered by the Director-General.519 In managing this permit system, the Director-General relies on criteria prescribed by the Minister.520 The applicant may be required to furnish an initial environmental examination report or an environmental impact assessment, as the case may be, which is forwarded to the Advisory Council for its comments.521 The public also has the right to provide comments on the environmental impact assessment.522 The permit is issued only if the development activity is consistent with the CZ&CRMP and related regulations and is valid for such periods as may be prescribed. The Director-General can attach conditions as is necessary for the proper management of the coastal zone.523 In cases where the permit holder violates any of the conditions, the Director-General can vary the conditions or can even revoke the permit.524 To resolve user conflicts, the 1988 amendment525 to the Coast Conservation Act, 1981 (CCA) provides that “[n]o person shall, by reason of possession or use of any specific portion of the beach claim to have acquired title to such portion of the beach as against the State.”526 Furthermore, the right of the pub­ lic to use or enjoy any portion of the beach was also guaranteed.527 Despite 514 515 516 517 518 519 520 521 522 523 524 525 526 527

Ibid., s. 8 (replaces s. 11 of the Sri Lanka CCA 1981). Sri Lanka CCA 1981, supra note 481, s. 12(1); see also Sri Lanka CCAA 2011, ibid., s. 9. Sri Lanka CCAA 2011, ibid., s. 9(2). Sri Lanka CCA 1981, supra note 481, s. 12; Sri Lanka CCAA 2011, ibid., s. 9. Sri Lanka CCA 1981, ibid., s. 14(2). Ibid., s. 14(1). Ibid., s. 13; Sri Lanka CCAA 2011, supra note 481, s. 10. Sri Lanka CCA 1981, ibid., s. 16; see also Sri Lanka CCAA 2011, ibid., s. 12. Sri Lanka CCA 1981, ibid., s. 16(3)(b). Ibid., s. 17. Ibid., s. 19; Sri Lanka CCAA 2011, supra note 481, s. 15. Sri Lanka CCAA 1988, supra note 481. Ibid., s. 8 (inserts section 31D(1) in the Sri Lanka CCA 1981). Ibid. (inserts section 31D(3) in Sri Lanka CCA 1981).

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these stipulations, conflicts continued between the fishing and tourism sec­ tors. There have also been conflicts between the artisanal and mechanized segments of the fishing industry. To address these issues, the 2011 amendment seeks to secure coastal access.528 Accordingly, the Director General is tasked through a survey to identify all routes, paths and corridors that facilitate public access to beaches and coastal zones. Based on these findings, a coastal access plan is prepared, which is submitted to the Advisory Council.529 Based on its recommendations, the coastal access plan is modified and put before the pub­ lic domain for comments.530 The public can comment to the Director-General within 60 days, who then incorporates these into the plan.531 Thereafter, a revised plan is submitted to the Minister, who places it before the cabinet for approval.532 Once the plan secures cabinet approval, it is gazetted to render it operative.533 As well, the Minister can make regulations specifying matters that need to be included in the coastal access plan, the activities that can be carried out, and details regarding ownership of lands inclusive of extents and locations.534 To secure protection to the coastal environment and to strengthen the provisions relating to coast conservation and coastal resources management, section 19 of the Coast Conservation (Amendment) Act, 2011 inserts new tools into the principal enactment.535 The first is the concept of “affected areas.” The amended section now empowers the Minister to declare any area in the coastal zone, any water body or a part thereof, any lagoon or part of any lagoon or its peripheral areas as an “affected area.”536 All detrimental developmen­ tal activities, including those that can be sanctioned under permit (e.g., the filling, obstruction, pollution or the carrying out of any act that can harm aquatic and marine life) are prohibited in the affected areas and are liable to be punished.537 In addition, the Minister can make regulations for the adminis­ tration of affected areas and activities prohibited in such areas.538 528 Sri Lanka CCAA 2011, supra note 481, s. 36(1). 529 Ibid., s. 19 (inserts section 22(F)(1) into Sri Lanka CCA 1981). 530 Ibid. (inserts section 22(F)(3) into Sri Lanka CCA 1981). 531 Ibid. 532 Ibid. 533 Ibid. (inserts section 22(F)(4) into Sri Lanka CCA 1981). 534 Ibid. (inserts section 22(F)(5) into Sri Lanka CCA 1981). 535 Ibid. (inserts parts IIIA, IIIB, IIIC and IIID (sections 22B, 22C, 22D, 22E, 22F, and 22G) into Sri Lanka CCA 1981). 536 Ibid. (inserts part III A (section 22B(1)) into Sri Lanka CCA 1981). 537 Ibid. (inserts section 22B(2), (3) into Sri Lanka CCA 1981). 538 Ibid. (inserts section 22 B(6) into Sri Lanka CCA 1981).

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The second tool is the “beach park.”539 If the Minister is of the opinion that any area within the coastal zone, due to its scenic beauty and biodiversity, needs preservation, it can be declared as a “beach park,” and regulations can be made for its administration.540 The Minister is also empowered to declare “conservation areas,” in which special measures can be implemented to pro­ tect coastal and aquatic ecosystems. Though development activities, and the collection and gathering of aquatic resources are prohibited in such areas, the Director-General can issue permits for scientific study and research.541 Again, the Minister is empowered to make regulations prescribing the manner and the mode of administration of such areas.542 Another important feature of the 2011 amendment is that it entrenches the concept of “special management areas” to facilitate a collaborative approach to coastal resource management.543 Accordingly, the Minister has the discretion to declare coastal zone areas and those lying adjacent to them as a “Special Management Area,” provided that these are included within the CZ&CRMP.544 The Minister is empowered to make regulations prescribing administrative details on the activities that can be carried out and the persons entitled to have access to such areas.545 Apart from prohibiting the mining of sea corals within and outside the coast,546 the Sri Lankan coastal law proscribes the filling of land or water bodies within the coastal zone without a permit.547 In cases where this prohibition is violated, the Director-General can call upon the persons responsible to remove the substances used for filling up the land or the water body and restore the same to its original state within a specified time.548 If the restoration is not completed, the Director-General can remove the substance and the costs can be recovered from the concerned person as arrears due to the state.549

539 Ibid. (inserts section 22C(1) into Sri Lanka CCA 1981). 540 Ibid. 541 Ibid. (inserts section 22D(2) into Sri Lanka CCA 1981). 542 Ibid. (inserts section 22D(3) into Sri Lanka CCA 1981). 543 Ibid. (inserts section 22E(1) into Sri Lanka CCA 1981). 544 Ibid. (inserts section 22E(1), (2) into Sri Lanka CCA 1981). 545 Ibid. (inserts section 22 E(2) into Sri Lanka CCA 1981). 546 Ibid., s. 29 (inserts section 31BB into Sri Lanka CCA 1981). 547 Ibid., s. 32 (inserts section 31G into Sri Lanka CCA 1981). 548 Ibid. (inserts section 31G(1), (2) into Sri Lanka CCA 1981). 549 Ibid. (inserts section 31G(8) into Sri Lanka CCA 1981).

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3.2.4.2 Remarks Notwithstanding its drawbacks, Sri Lanka’s experience with coastal law mak­ ing is a model that could be emulated by other countries in South Asia and beyond. As a first-generation coastal law enacted well before the entrench­ ment of the concept of ICZM at the international level, Sri Lanka’s Coast Conservation Act 1981 has been remarkably resilient in operationalization of ICZM in that country. Its proclivity towards ICZM is evident even from the definition given to the term “coastal zone” as the area of 300 meters land­ wards from the mean high water line and two kilometers seawards from the mean low water line.550 It is notable that the Coast Conservation Act 1981 pro­ vides for spatial integration, which is central to an ICZM process. The recent amendment has considerably strengthened and fortified the ICZM regime in Sri Lanka. As well, from an ICZM perspective, this coastal law now provides legal recognition to the right of public access to coastal areas,551 contains provisions to control marine pollution,552 protects sensitive coastal ecosystems like coral reefs,553 and requires that the CZ&CRMP inter alia provide for coastal erosion management,554 and zoning of coastal water usage.555 By including ‘zoning of coastal water usage,’ it seems that the drafters of the 2011 amendment seek to establish inter-linkages between ICZM and marine spatial planning.556 Until the amendment of 2011, only one amendment was carried out to this law over the past three decades.557 This is primarily because this is a frame­ work law that provides a broad structure and the tools for ICZM. The details of the management process are worked out through the CZMPs (presently, christened as the CZ&CRMPs). The first CZ&CRMP was developed in 1990. It dealt with managing the critical coastal problems of that time, namely, ero­ sion control and sand and coral mining. Subsequently, in association with the University of Rhode Island, the Coast Conservation Department prepared “Coastal 2000: Recommendations for A Resource Management Strategy for Sri 550 Sri Lanka CCA 1981, supra note 481, s. 42. 551 Sri Lanka CCAA 1988, supra note 481, s. 8 (inserts section 31D(1) & (3) into Sri Lanka CCA 1981); see also Sri Lanka CCAA 2011, supra note 481, part IIID. 552 Sri Lanka CCA 1981, supra note 481, s. 25; see also Sri Lanka CCA 1988, ibid., s. 8 (inserts section 31C into Sri Lanka CCA 1981, which calls for the demolition of kilns in the coastal zone); see also Sri Lanka CCAA 2011, ibid., s. 32. 553 See Sri Lanka CCA 1988, ibid., s. 8 (inserts s. 31A which prohibits the mining of corals within the coastal zone); Sri Lanka CCAA 2011, ibid., s. 29. 554 Sri Lanka CCAA 2011, ibid., s. 9. 555 Ibid. 556 For the European Union approach on linking ICZM and marine spatial planning, see also Ch. 8, Part 8.3.2.2. 557 Sri Lanka CCAA 1988, supra note 481.

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Lanka’s Coastal Region” (Coastal 2000), in 1992, which spearheaded Sri Lanka’s movement towards ICZM.558 In the revised Coastal Zone Management Plan of 1997, based on the prin­ ciples of Coastal 2000, SLR was linked to the broader goal of coastal erosion control and attention was also directed to new areas of concern like marine pollution. More importantly, in a marked shift in perspective, this second gen­ eration CZ&CRMP initiated a new bottom-up and collaborative management strategy to complement the top-down approach by providing for a new tool, namely, “special area management.”559 In the 2004 version of the CZ&CRMP, apart from subjects that were dealt with by the earlier CZ&CRMPs, the empha­ sis shifted to integrating coastal fisheries and aquaculture, facilitating public access, and using new regulatory mechanisms. It has been decided to provide greater emphasis to climate change considerations in the next revision of the CZ&CRMP.560 Prescriptively, Sri Lanka has one of the best normative frameworks on ICZM supported by comprehensive ICZM plans. Despite this, coastal degradation continues, highlighting the need for effective implementation of the laws. However, other issues must also be considered. Sri Lanka was in the grip of Asia’s longest running civil war that lasted for more than 30 years.561 During this period, the writ of the national government did not run in the war-torn regions of the north and the east. Among the eight South Asian Association for Regional Cooperation (SAARC) countries, even though Sri Lanka has the high­ est level of human development, there is large regional disparity attributable to the prolonged conflict.562 Now, with the Liberation Tigers of Tamil Elam having been militarily defeated, the first priority of the national government is reconciliation and initiation of development in these regions.563 Prior to the outbreak of the war, the Tamil-dominated northern provinces played a very important role in sustaining Sri Lankan fisheries. In 1983, about 40 per cent of the total marine fish production of the country was from Mullaitivu, Jaffna and 558 See generally S. Olsen et al., eds, Coastal 2000: Recommendations for A Resource Management Strategy for Sri Lanka’s Coastal Region, vols 1 & 2 (Colombo: Coast Conservation Department and Coastal Resources Center, Sri Lanka & the University of Rhodes Island, 1992); John R. Clark, Integrated Management of Coastal Zones, FAO Fisheries Technical Paper, No. 327 (Rome: FAO, 1992) at 581. 559 Revised Coastal Zone Management Plan, 1997, supra note 443 at 97. 560 Sri Lanka, Second National Communication, supra note 441 at 93. 561 Jayashree Bajoria, “The Sri Lankan Conflict” (18 May 2009), online: Council on Foreign Relations . 562 UNDP, Sri Lanka Human Development Report, supra note 439 at 13. 563 C. Bryson Hull, “Sri Lanka president pledges reconciliation, development” Reuters (10 April 2010) online: Reuters .

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Mannar.564 The conflict completely destroyed the fishing industry and efforts are now being directed to resuscitating them.565 There is also considerable potential for tourism development in these regions. Coming in the wake of nearly three decades of civil war, the new amend­ ment to the coastal law indicates Sri Lanka’s intention to utilise and manage its coastal resources to promote economic development. Thus, the law is not solely about coast conservation but also about coastal resources management. Nonetheless, Sri Lanka continues to adopt a dirigiste approach to coastal management and regrettably, the new amendment to the coastal law practi­ cally fortifies the ‘command and control’ approach to coastal management. As of now, there is provision only for a single national ICZM plan. Moreover, the recent amendment to the law does not contain any provision relating to decentralization and the involvement of local bodies in coastal management.566 Tamil representation from the war-torn north has not been secured in the con­ stitution of the Advisory Council even though the amendment, while recasting the Advisory Council, specifically provides that the Minister can appoint three persons: one representing academic staff from the Universities, one represent­ ing non-governmental organizations concerned with coastal environment protection, and the other representing the fishing industry.567 Employment of such wide legislative language does not necessarily guarantee representation of Tamil coastal communities in the body. Such a centralized approach to CZM may not prove successful in the long run. There will be the need for ICZM plans at the provincial level to account for the development aspirations and conservation objectives of each coastal province in the context of national constitutional dynamics and development imperatives.

564 Wadakkin Wasantham, Accelerated Fisheries Sector Development Plan for the Northern Province in Sri Lanka, online: Ministry of Fisheries & Aquatic Resources Development . 565 For a summary of damage caused to economic and social infrastructure in the northern province, see UNDP, Sri Lanka Human Development Report, supra note 439 at 6. 566 See generally Sri Lanka CCAA 2011, supra note 481. There are four levels of government in Sri Lanka. At the apex, there is the central government with a 225 member parliament. The next layer is the nine provincial councils, followed by 18 municipal councils and 42 urban councils, which administer large and small towns. The 270 Pradeshiya sabhas (village councils) are the last layer, which administer villages. UNDP, Sri Lanka Human Development Report, ibid. at 111. Provinces and local bodies are dependent on the central government for funds and because of the civil war there was shortage of funds. Ibid. at 113. 567 Sri Lanka CCAA 2011, ibid., s. 7.

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Even though, the CC&CRMA has proven to be a remarkably adaptable tool for achieving sustainable coastal management and in spite of the 2011 amend­ ment, the CC&CRMA may have to be re-visited in light of new thinking on CZM law. The CC&CRMA does not embody the concept of a principled approach to coastal and ocean governance. Rather, it facilitates tightening state control over coastal areas and resources by continuing to vest them in the Republic.568 In other words, the CC&CRMA is more state-centric and less people-centric. The Sri Lankan coastal law mirrors the Indian approach, which provides for public participation in the preparation of CZ&CRMPs but sub­ sequently undermines community-based management of coastal areas and resources. As well, the strategy for combating climate change and SLR needs to be strengthened, as the thrust has primarily been limited to controlling coastal erosion. Climate change and SLR are treated as sub-sets of coastal erosion when, in reality, the problems posed by climate change and SLR are more grave and complex and warrant an independent but holistic approach. 3.2.5 The Maldives The smallest Asian country, the Maldives is a low-lying archipelago, situated on the Laccadives-Chagos submarine ridge in the heart of the Indian Ocean.569 It comprises nearly 1,192 small low-lying islands, out of which 194 support human habitation, infrastructure and economic activities and are grouped into 26 atolls to form a chain over 820 kilometers in length, spread over an area that is more than 90,000 square kilometers in the Indian Ocean.570 The Maldives remains isolated and is surrounded by a vast Indian ocean. It has very little terrestrial resources, and with an EEZ that is about 959,100 square kilometers,571

568 Sri Lanka CCA 1981 as amended by Sri Lanka CCAA 2011. Sri Lanka CCAA 2011, supra note 481, s. 2. The Sri Lankan government has been reluctant to implement the 13th amend­ ment to the Constitution, brought about by the Indo-Lanka Political Accord of 1987, which is an important attempt to devolve power to the Tamil provinces. UNDP, Sri Lanka Human Development Report, supra note 439 at 3. 569 Maldives, GEF, UNDP & Ministry of Environment, Energy & Water, National Adaptation Programme of Action (NAPA) [nd] at 7, online: UNFCCC [Maldives, NAPA]. 570 Ibid.; see also Maldives, Ministry of Environment and Energy, State of the Environment 2011 (2011) at 22 [Maldives, State of the Environment 2011]. 571 Maldives, online: Mangroves for the Future, Countries, Members, Maldives .

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it has more territorial sea (67,000 square kilometers)572 than land. Thus, this country depends heavily on the sea and its marine wealth for its existence. With 80 per cent of Maldives less than a meter above sea level,573 (the aver­ age ground level being only 1.5 meters above sea level) and with more than half of its population and other critical infrastructure (airports, ports, sewerage sys­ tems, etc.) located within 100 meters of the coastline, there is high possibility that many of these islands, the infrastructure and human settlements will be submerged in due course.574 As one of the lowest countries on the planet, if sea levels were to rise by 50 centimeters, it could prove catastrophic for the Maldives.575 With the climb in sea level predicted to hover around 1.7 milli­ meters per year, climate change and SLR represents an “existential threat” to these islands.576 Other climate change impacts will also profoundly impact 572 John C. Pernetta, ed., Marine Protected Areas Needs in the South Asian Seas Region, A Marine Conservation and Development Report, vol. 3: Maldives (Gland: IUCN, 1993) at 1 [Pernetta, Maldives]. 573 IDA & IFC, Country Assistance Strategy for the Republic of Maldives, Report No. 41400— MV (World Bank Group: South Asia Region, 2007) at 81 [IDA & IFC, Country Assistance]. 574 Maldives, State of the Environment 2011, supra note 570 at 61. 575 The Maldives is an archipelago of 26 natural atolls, consisting of 1,190 coral reef islands in the Indian Ocean. Out of the 200 islands that are inhabited, 89 islands are used as tour­ ist resorts. The islands are scattered over an area of 750 kilometers from north to south and 120 kilometers from east to west covering around 90,000 square kilometers. About 99.5 per cent of its territory consists of ocean. Eighty per cent of the land area in the Maldives is less than one meter above mean high tide level. The highest elevation in the country is only 2.4 meters above sea level. Climate Change—Impacts, Policies and Strategies for Adaptation and Mitigation for the Maldives APFIC Workshop on Implications of Climate Change on Fisheries and Aquaculture, online: Asia-Pacific Fishery Commission [Climate Change-Impacts, Policies]. As well, when the Tsunami struck Maldives, it “pretty much submerged” the entire country for a few minutes. Jon Hamilton, “Maldives Builds Barriers to Global Warming” NPR (28 January 2008), online: npr . The Maldives is the sixth smallest sovereign state in terms of land area. Ninety six per cent of the land area of the islands is less than one square kilometer. Only 10 islands are more than 2.5 square kilometers. The largest island Gan (Laamu Atoll), has an area of 6.1 square kilo­ meters. Land is highly scarce and the 358 islands that are currently in use account for 176 square kilometers. The remaining unutilized islands make up only 59 square kilometers. Maldives, NAPA, supra note 569 at 19. 576 Ali Hashim, “Address” (Governor’s Speech delivered at the 43rd Annual Meeting, Board of Governors, Asian Development Bank, Tashkent, Uzbekistan, 1–4 May 2010) at 2, online: ADB ; see also Maldives, State of the Environment 2011, supra note 570 at 60.

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the Maldives. Already, 41 islands have experienced severe erosion,577 power­ ful tidal waves have hit the islands,578 and the prevalence of vector borne and respiratory diseases has increased.579 In addition, an increasing trend in sea surface temperature has been observed580 and tropical cyclones are pre­ dicted to increase in intensity by 10 per cent.581 In several ways, this country epitomizes a worst-case scenario of SLR and climate change impacts on Small Island Developing States. The population of the Maldives is more than 300,000 and more than a third live in the capital Malé, which has an area of less than two square kilometers.582 With only less than one per cent of this country habitable, land is the scarcest and most precious resource.583 This makes it difficult to accom­ modate the growing population.584 Previously, all land was owned by the state, which granted permission to private individuals for construction purposes. It was only after the introduction of the Maldivian Land Act in 2002 that indi­ viduals could acquire private ownership rights.585 The new Constitution also recognizes the right of citizens “to acquire, own, inherit, transfer or otherwise transact . . . such property”586 subject to the state’s power of acquisition for the “public good.”587 Consequently, private ownership over land is steadily increas­ ing, particularly in Malé and other urban areas.588 This change in the nature of land tenancy raises the issue of access to beachfronts for traditional fishing communities. 577 Maldives, State of the Environment 2011, ibid. at 61. 578 On 15 May 2007, and four days since, powerful swells hit the Maldives affecting 88 islands on 18 atolls. Ibid. at 62; Maldives, NAPA, supra note 569 at 16. 579 Maldives, State of the Environment 2011, ibid. at 69. 580 Maldives, NAPA, supra note 569 at 15. 581 Ibid. 582 Ibid. at 9. Thirty-four islands have already reached their carrying capacity, while 17 islands will exhaust the available land by 2015. Maldives, State of the Environment 2011, supra note 570 at 64. The population of the Maldives has increased by 57 per cent over the last 25 years. Ibid. at 35. 583 Maldives, NAPA, ibid. at 19. 584 Ibid. at 21. 585 (Law No. 1/2002, Maldives), s. 1(a). 586 WIPO, Maldives: Constitution of the Republic of Maldives, 2008, online: Ministry of Tourism Arts and Culture [Constitution of the Republic of Maldives]. 587 Ibid., art. 40. 588 The Government of Maldives, “Aneh Dhivehi Raajje”: The Strategic Action Plan, National Framework for Development 2009–2013, at 444, online: The President’s Office, Republic of Maldives [“Aneh Dhivehi Raajje”].

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Since land and water resources are limited, the soil is largely infertile, and coastal agriculture is confined to a few basic crops.589 Agricultural production in the Maldives is extremely low, leaving this island a major importer of food products.590 Moreover, local products have to compete with imports, which are lower priced.591 In the event of an extreme climatic event, this can result in serious food shortages and insecurity.592 The Maldives has no surface water sources except for a few freshwater ponds (kulhis) and freshwater lakes and therefore dependence on groundwater is almost complete.593 Potable ground­ water resources are also very scarce, so the overwhelming majority of the pop­ ulation depends on rainwater tapped from rooftops and stored in tanks.594 In the capital of Malé, the residents have access to desalinated water through a piped network.595 Sewage pollution is a major cause for concern, as it contami­ nates water supplies, making it unfit for human consumption.596 Despite the inhospitable nature of its environment, the Maldives is the only South Asian country that has managed to secure the Millennium Development Goal of eradicating extreme poverty and hunger.597 This is a rare and unique achievement for any country, let alone one from a region in which large sec­ tions of humanity live on less than a dollar a day.598 However, as the economy is primarily tourism-based, any change in the environment can significantly impact the economic well-being of this country.599

589 The total land area of the Maldives is only 300 square kilometers. Maldives, State of the Environment 2011, supra note 570 at 23. 590 Pernetta, Maldives, supra note 572 at 14; see also Maldives, State of the Environment 2011, ibid. at 52, 53. 591 Maldives, State of the Environment 2011, ibid. at 53. 592 Maldives, NAPA, supra note 569 at 35. 593 Shaheedha Adam Ibrahim, Mohamed Rasheed Bari & Leon Miles, “Water Resources Management in Maldives with an Emphasis on Desalination”, online: SOPAC . 594 Maldives, State of the Environment 2011, supra note 570 at 82. 595 Ibid. at 85. 596 Ibid. at 87. 597 The World Bank, Maldives Overview, online: The World Bank, Country, Maldives, Overview . 598 Maldives, State of the Environment 2011, supra note 570 at 41. 599 The tsunami reduced the real GDP growth of this country by -4.6 per cent in 2005. Ibid. at 44.

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To a great extent, the stability of these islands depends on the health of its coastal reefs.600 The coral reefs act as natural sea defenses.601 Given the rapid pace at which the climate is changing, the corals may not offer adequate pro­ tection to the Maldives beyond 2050.602 Until that time, they could potentially delay the worst effects of SLR. However, the corals are being degraded to facili­ tate development of tourism-related infrastructure and are also under consid­ erable threat from bleaching due to changes in ocean temperature. This has affected tourism prospects, fisheries, and food security.603 A related issue is that of mining, primarily for construction purposes.604 The massive boom in construction of cement houses and high-rise concrete build­ ings has led to an increased demand for sand. To meet this demand, river sand and aggregates are usually imported from India,605 but this is very expensive. As a result, illegal coral sand mining continues, threatening the stability of the islands.606 To augment the limited land supply, the Maldives has implemented several land reclamation schemes.607 Sand is pumped from the atoll lagoon floor and layered onto reef flats to form new land.608 This process is environmentally harmful, as it destroys reef flat communities, increases the level of suspended sediments,609 and also adversely affects neighboring coral reef communities.610 Moreover, changing the shape of the island alters wave refraction patterns, interfering with local wave and current regimes and enhancing the rate of coastal erosion.611 The lack of space poses problems for waste disposal. 600 Ibid. at 38. 601 Pernetta, Maldives, supra note 572 at 17. 602 Ibid. 603 Jean-Luc Solandt & Chris Wood, Observations of Reef Conditions on Central Maldives Reefs, 2005 (surveyed from 23 June to 7 July 2005, with additional notes from 10–21 January 2005): A Report by the Marine Conservation Society in Collaboration with Maldives Scuba Tours (2005) at 6.; Maldives, NAPA, supra note 569 at 74. 604 “Sand Mining Might Erase Some Islands from Map of Maldives,” BLUEPEACE Blog (17 July 2008), online: BLUEPEACE Blog . 605 Ibid. 606 Ibid. 607 The largest land reclamation project is the creation of the Hulhumalé (Kaafu Atoll), an artificial island that is approximately two square kilometers. Maldives, NAPA, supra note 569 at 22. 608 Pernetta, Maldives, supra note 572 at 15. 609 “Towards an Artificial Paradise on Earth,” BLUEPEACE Blog (24 May 2008), online: BLUEPEACE Blog . 610 Pernetta, Maldives, supra note 572 at 15. 611 Ibid.

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The Thilafushi waste disposal site, built on a reclaimed lagoon, receives all kinds of wastes, including hazardous substances that threaten the surrounding ocean.612 As well, untreated sewage effluents are disposed into coastal waters, contaminating the environment.613 The sovereign and independent Maldives is a unitary democratic republic based on the principles of Islam, which influences its CZM regime.614 In 2008, the Maldives adopted a new Constitution that guarantees every citizen “the right to a healthy and ecologically balanced environment.”615 It imposes upon the state “. . . a fundamental duty to protect and preserve the natural environ­ ment, biodiversity, resources and beauty of the country for the benefit of pres­ ent and future generations.”616 Another important feature of the Maldivian Constitution is that it stipulates decentralised administration.617 To facilitate people-oriented development, it empowers citizens by promoting grassroots democracy.618 The Maldives does not have legislation on ICZM. However, there are several general laws that may make up for this deficiency. A primary reason for the non-enactment of a dedicated coastal statute is the small sizes of the islands, which, in their entirety, are treated as coasts.619 The most important among the general environmental laws is the Environmental Protection and Preservation Act of Maldives, 1993 (EPPA) based on the principles of inter-generational equity and sustainable development.620 The EPPA empowers government authorities to issue guidelines and to provide advice on matters relating to environmental protection, which responsible actors should take into consideration in their activities.621 Section 10 provides 612 Table 2.5: Waste Transported to Thilafushi from Malé, 2003–2008, (in tons), online: Depart­ ment of National Planning, Republic of Maldives . 613 “Sewage around Male’,” BLUEPEACE Blog (22 April 2008), online: BLUEPEACE Blog . 614 Constitution of the Republic of Maldives, supra note 586, art. 2. 615 Ibid., art. 23(d). 616 Ibid., art. 22. 617 Ibid., arts. 230–35. 618 Maldives, Act on Decentralization of the Administrative Divisions of the Maldives, 2010 (Draft), online: Shareefweb, Maldives Dev Info, Local Governance, Updates Since 2008 . 619 Abdulla Naseer, “Pre-and Post-tsunami Coastal Planning and Land-use Policies and Issues in the Maldives”, online: FAO Home . 620 Environmental Protection and Preservation Act of Maldives, 1993 (Act No. 4/1993, Maldives), s. 1 [EPPA]. 621 Ibid., s. 2.

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that the government can claim compensation for environmental damage.622 From the perspective of ICZM, section 4 is important as it provides for the identification of protected areas and natural reserves and the development of rules for their preservation. Accordingly, the Maldives has established 39 pro­ tected areas, out of which 25 are marine protected sites.623 Other notable fea­ tures include provisions for environmental impact assessments,624 the power to terminate projects that pose undesirable impacts on the environment, and a prohibition on the disposal of hazardous, toxic or nuclear wastes.625 Fisheries have long sustained life on these islands. More than 20 per cent of the population depends on fisheries for their livelihood, which are also the primary export.626 In recent years, there has been a marked decline in fish production and local fish consumption has also decreased.627 Traditionally, Maldivian fishermen relied on the environment-friendly pole and line fishery.628 With the easing out of restrictions on long line fishing, 629 there is increased scope for intense competition, which may affect coastal health and adaptive capacity. As well, climate change has led to the warming of the seas, leading to fish migrations further reducing the supply.630 Tourism is the life-blood of the Maldivian economy, contributing to more than one-third of its GDP.631 Since the first resort opened in 1972, this indus­ try has seen an exponential growth with a turnover of about USD198 million annually632 and a total bed capacity reaching 19,028 in 2007.633 Despite the 622 Ibid., s. 10. 623 Maldives, State of the Environment 2011, supra note 570 at 32. 624 EPPA, supra note 620, s. 5; Maldives, Ministry of Environment, Energy and Water, Environmental Impact Assessment Regulations, 2007 (Maldives, [nd]), regs 3–11. 625 EPPA, ibid., ss. 7–8. 626 Maldives, NAPA, supra note 569 at 10. 627 Ibid. 628 M. Shiham Adam, “Country Review: Maldives” in Cassandra De Young, ed., Review of the State of World Marine Capture Fisheries Management: Indian Ocean, FAO Fisheries Technical Paper: 488 (Rome: FAO, 2006) 383 at 383. 629 Laura Restrepo Ortega, “Cabinet approves long line fishing for Maldivian vessels” Minivan News (31 March 2010), online: Minivan News . 630 Maldives, NAPA, supra note 569 at 28. 631 Ibid. at 10; “Aneh Dhivehi Raajje”, supra note 588 at 314. 632 Bureau of South Asian Affairs: February 2005, Background Note: Maldives, online: US Department of State . 633 Table 10.8: Bed Capacity of Tourist Resorts and the Distance from Malé International Airport, 2006–2008, online: Department of National Planning, Republic of Maldives .

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2004 tsunami, tourist arrivals have steadily increased.634 The tourism industry is primarily regulated by the Maldives Tourism Act, 1999,635 which determines the zones and islands that can be developed for tourism, the leasing of islands and lands, and the management of all such facilities, including the operation of tourist vessels, diving centers and travel agency services.636 From an envi­ ronmental perspective, section 15 proscribes the dredging of lagoons, reclama­ tion of land, and felling of coconut palms and trees on any island or land that has been leased for development as a tourist resort, unless authorized by the Ministry of Tourism.637 The Maldives is party to several international environmental law instru­ ments and these have influenced the development of its domestic legal regime. They have also played a pivotal role in drawing the attention of the interna­ tional community to the vulnerability of small islands to climate change and SLR. In 1989, the Maldives hosted the Small States Conference on Sea Level Rise which produced the Malé Declaration on Global Warming and Sea Level Rise, 1989 (Malé Declaration)638 that set out a program of action for small states in relation to climate change, global warming, and SLR.639 As far as CCCA is concerned, due to the unique physical characteristics of the islands described earlier and the undiversified nature of its economy,640 the country has very little capacity to adapt and minimal variations in temper­ ature and sea levels can upset the fragile equilibrium. The Maldives has devel­ oped a National Adaptation Programme of Action, which broadly recognizes the importance of climate change adaptation.641 The document identifies several adaptation actions, affording top priority to building capacity for coastal protection, CZM and flood control.642 Other prominent coastal adap­ tation measures include implementation of integrated reef fishery management; safe rainwater harvesting; and recharging aquifers.643 The document 634 635 636 637 638 639 640

641 642 643

IDA & IFC, Country Assistance, supra note 573 at 1. Maldives Tourism Act, 1999 (Law No. 2/99, Maldives). Ibid., s. 1(a). Ibid., s. 15(a). “Malé Declaration on Global Warming and Sea Level Rise” (1990) 5:2 Int’l J Estuarine & Coast L 401 (HeinOnline) [“Malé Declaration”]. Ibid., ¶1. The fisheries sector provides employment for 13,890 fishermen as well as around 6,000 artisanal fish processors of ‘Maldive fish’. Fisheries accounts for six per cent of GDP and 98 per cent of exports. Climate Change–Impacts, Policies, supra note 575. See generally Maldives, NAPA, supra note 569. Ibid. at 43. Ibid. at 43–44.

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also recognizes several projects to protect the islands from SLR.644 In rela­ tion to implementing adaptation, another difficulty for the Maldives is that given its limited perimeter, scarcity of land and extreme low elevation, it is a challenge to resort to retreat and establish setbacks. As such, proactive CCCA schemes like beach replenishment, hard coastal armouring, and the creation of artificial islands are the primary adaptation options available to it. The Maldives has yet to enact a specific ICZM law, and has adopted a rather sectoral and fragmented approach to coastal management that is rooted in several general environmental laws. The most prominent of these is the EPPA, which has only indirect relevance to the objectives of CZM. Due to the small size of the islands, the entire territory is considered as “coast” and the manage­ ment response is molded accordingly. However, in contrast, other small island states (for example, Barbados645 the Marshall Islands646) have dedicated stat­ utes on CZM and integrated sectoral efforts to produce holistic responses to the problems that confront them. Specifically, in the South Asian context, as seen earlier, India has a dedicated legal regime to deal with the management of its islands. Interestingly, the Malé Declaration647 inter alia recommended that, “where necessary, all states must take immediate measures to establish the institutional framework to protect and manage their coastal zones and to enact legislation to facilitate such measures.”648 The Maldives is contem­ plating to develop a national framework for ICZM.649 Clearly, implementing ICZM through a dedicated coastal law can be a more feasible and practicable option for the country to attain its development objectives, prevent fragmenta­ tion, secure greater integration, and also deal with the basic challenges to its territorial existence posed by climate change and SLR. Specifically, a coastal law can be a fillip to this country’s intention to protect and conserve sensitive coastal ecosystems. Implementing such a statute would strengthen pursuit of its climate change adaptation strategies to produce long-term tangible results. For now, its vulnerability to climate change impacts and the strong possibility that the country may eventually be lost to the rising waves means that it may 644 For instance, “Coastal Protection of Safer Islands to Reduce the Risk from Sea Induced Flooding and Predicted Sea Level Rise” is priority project no. 2 in the Maldives NAPA. Ibid. at 50, 51. 645 New Coastal Zone Management Act 1988 (No. 39 of 1998, Barbados). 646 Coast Conservation Act 1988 (PL 1988–13, Marshall Islands). 647 “Malé Declaration”, supra note 638. 648 Ibid. at 402. 649 Maldives, supra note 571; Policy Brief on Governance and Integrated Coastal Management: Maldives, online: Mangroves for the Future .

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become necessary for the Maldives to eventually buy land territory or even merge with another country.650 Until then, this island nation has to persist with a proactive approach to CCCA based on an ICZM process. 3.3

A Coastal Law Audit of South Asia: An Overview

The indisputable conclusion that emerges from these national reports on the state of ICZM in South Asia is that in spite of the convergence of evidence and dire predictions relating to SLR and climate change, their potential conse­ quences have not been duly considered and provided for in the national ICZM regimes of various South Asian coastal countries. Because the legal aspects of ICZM are often sidelined, there are very few dedicated coastal laws in South Asia that truly support the implementation of an ICZM process. In general, the national reports show that most of these countries have not adopted a pro­ active approach to operationalizing ICZM to ensure the sustainable develop­ ment of their coastal areas and resources. Their emphases focus on utilizing coastal resources to secure short-term economic benefits at the expense of environmental sustainability. They have also not paid adequate attention to ICZM as a core adaptive strategy to secure the sustainability of their coastal ecosystems, environment and resources, particularly in the event of SLR. India’s experience holds several important lessons for coastal managers, the most important being how a coastal law can be used as an effective instrument for zoning, when generally it is land-use and planning legislations that pro­ vide for this. Even so, India is also a classical example of how decision-makers, for short-term economic gains, prioritize myopic development proposals over genuine environmental considerations. This is why the government could not implement CRZ 1991 in its true spirit. The CRZ 1991 may be the only coastal law in the world to have been amended nearly 25 times in its two-decade lifespan, and yet the government still appears unsure on how to implement an ICZM agenda to harmonize coastal development with coastal environmental protec­ tion imperatives. Even the more recent CRZ 2011 has not been able to resolve the stalemate, as it adopts a rather cautious approach to ICZM, and the con­ cept of hazard line management practically exposes large segments of coastal populations to the impacts of SLR.

650 See generally Tony George Puthucherril, “Climate Change, Sea Level Rise and Protecting Displaced Coastal Communities: Possible Solutions” (2012) 1 Global J Comp L 225 [Puthucherril, “Climate Change”].

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In the federal state of Pakistan, ICZM is a domain determined by the prov­ inces. Although both Sindh and Balochistan have enacted coastal legislations, given the dimensions of the anticipated impacts of climate change and SLR in their coastal regions, they may prove inadequate. As well, the protection of the Indus river delta from a rising Arabian Sea requires the maintenance of definite quantities of water supply to the coast, and this requires greater inter­ vention at the federal level. Bangladesh and the Maldives represent worst-case scenarios in terms of the impact of SLR, as both countries stand to lose large chunks of their ter­ ritories to the rising seas. Bangladesh has not yet enacted a national law for ICZM, although it has come a long way in developing a national policy and a development strategy for ICZM. Being one of the poorest nations, the primary concerns in Bangladesh are poverty eradication, employment generation, and reduction of socio-economic inequities. Here, ICZM is viewed as an instru­ ment to attain broader development objectives like gender equality. While it is true that an ICZM law is a social welfare legislation that cannot overlook the larger socio-economic issues that face a country, and that improving socioeconomic conditions definitely helps advance adaptation capacity, it has to be emphasized that ICZM espouses a much narrower mandate. As such, Bangladesh must advance coastal legislation that can help it manage coast­ lines effectively and plan for CCCA, with particular focus on eliminating the conflicts that frequently erupt between different stakeholders over their rights and entitlements in the coastal zone. For the Maldives, climate change and SLR pose questions of survival, which may be beyond the scope of an ICZM regime. Nevertheless, an ICZM law that furthers CCCA may help to decelerate the process of destruction through careful planning and optimal use of coastal resources. After decades of internal strife, Sri Lanka is now experiencing a period of peace and, presumably, the writ of the national government now runs in the war-torn Tamil-dominated north and eastern coastal provinces. Even though an ICZM-friendly law has been in place since 1981, it is doubtful whether the Coast Conservation Act has had any perceptible impact on the management of the coastal areas in these regions. Moreover, as seen, the Coast Conservation Act is a first generation coastal law that does not accommodate the requirements and challenges posed by climate change and SLR. Immediately upon conclu­ sion of the civil war, the national government passed the Coast Conservation (Amendment) Act, 2011, with emphasis on coastal resources management. This reflects the resolve of the national government to exploit coastal resources. However, its amendment does not facilitate decentralization of coastal man­ agement or ensure public participation in decisions on it. The fact is that the

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amendment entrenches centralized bureaucratic control. Nevertheless, the other provisions in the amendment may prove beneficial; that is, if it is imagi­ natively utilized to promote the comprehensive economic growth of the warravaged coastal regions and ensure inclusiveness and the economic well being of the coastal communities in those regions. On the whole, ICZM law in South Asia stands on extremely weak ground. There are not many concerted national efforts to bolster it. Except for Sri Lanka, it is doubtful whether the other coastal countries even have ICZM plans in the true sense of the term. The institutional capabilities in most of the South Asian countries to implement ICZM are seriously deficient and exist­ ing approaches seem unable to respond to the scale of the problems posed by climate change. As well, climate change adaptation is generally treated as a fringe activity in these developing nations. Also marginally appreciated is the potential of coastal law to spur the economic development of the impover­ ished coastal communities of South Asia, and to improve their adaptive capac­ ities to participate in efforts to work towards sustainable development in the coastal regions.651 As it is today, the design of these national coastal laws does not inspire confidence that SCD can be attained at any time in the near future. Therefore, it is necessary that these laws have to be realigned and scaled up to respond to new challenges and demands. 3.4 Conclusion The investigation in this chapter depicts that, in general, the South Asian coastline is more vulnerable today than at any time in the past and is expe­ riencing rapid changes such as intense cyclonic storms, salinity ingress, sea surges, rising sea surface temperatures and SLR. These problems are not spe­ cific to South Asia; several coastal regions in different parts of the world also face them. Given climate change and SLR impacts in the region, South Asia’s challenge is how to foster SCD as a balance among environmental, social, and economic development objectives, and also promote CCCA. We have seen that though some degree of integration has been attempted in some of the countries, there remains a large disjoint between the obliga­ tions prescribed by the different national coastal law regimes and their practi­ cal observance. The existing laws on coastal management do not provide for 651 For more details on the features of social welfare legislations, see Lawrence M Friedman, “Social Welfare Legislation: An Introduction” (1969) 21 Stan L Rev 217 at 220 (HeinOnline).

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unanticipated challenges posed by SLR. Most of the laws are inapplicable to new situations, in large part because they are primarily sector-focused. Government efforts to manage coastal development and protection proceeds on an issue-by-issue basis, and there is very little coordination between pro­ grams. Apathy and efficient institutional capabilities in most of the South Asian countries to implement ICZM undermine readiness to respond to the problems posed by climate change. This handicap is complicated by political instability, lack of financial resources, absence of trained personnel, and cor­ ruption. Practical ICZM implementation schemes are run as poverty eradica­ tion undertakings rather than as efforts to secure SCD and adapt to climate change concerns. The overall nature of the coastal laws of the various coun­ tries speaks to the fact that ICZM is at the periphery of coastal management efforts in South Asia. Among others, the need to improve the coastal management regimes of these countries calls for a move away from the present piecemeal approach to the exercise, to a holistic approach that juxtaposes human need and environ­ mental concerns against economic development objectives. For this purpose, the coastal countries of South Asia need new management systems and legal frameworks that can foster cooperation among them to institutionalize con­ certed SCD in the region. This is poignant because climate change and SLR do not recognize man-made boundaries. Already in South Asia there is a looming possibility of climate change refugees crossing national borders and moving into nearby coastal countries. As well, it is also apparent that climate change impacts will not be uniform in the region and that devastation may be more amplified in some countries than in others. It is also evident that as individual countries, they have differing abilities to adapt to climate change and SLR, though the consequences of actions in one country can have trans­ boundary ramifications, including detrimental impacts on the stability and eco-resilience of coastal systems in other countries. The possibility for greater regional cooperation and adoption of regional mechanisms on ICZM imple­ mentation is explored in greater detail in part 4.

part 2 Linking Integrated Coastal Zone Management and Coastal Climate Change Adaptation for Sustainable Coastal Development

∵

This part explains the concepts of sustainable coastal development, CCCA and ICZM and their inter-relationship, and as the doctrinal foundation of this study it is laid out in three chapters as follows. The first, chapter four explains the intricacies of sustainable coastal development. It builds this by discussing the concept of sustainable development, which is premised on the idea that environmental and development agendas are inseparably inter-linked. It explores the changing conceptions of sustainable development, and argues that given the brooding potential of the phenomenon of climate change to overturn development, climate change mitigation and adaptation concerns must be dealt with if sustainable development is to be achieved. It is from this nuanced understanding of sustainable development that the concept of sustainable coastal development is set out. Even though sustainable development has widespread international recognition, one major reason it possesses little efficacy is the absence of specific pathways to operationalize the development it postulates in different settings. Currently, ICZM promises to be the most sustainable method for managing degraded coastlines. Chapter five discusses these issues in detail and asserts that the interlinking of the lateral development of ICZM and CCCA can produce workable and sustainable solutions for coastal zone development and management.

chapter 4

Understanding Sustainable Coastal Development 4.1 Introduction As the previous chapters demonstrate, reckless development, unsustainable resource exploitation and marine pollution have placed South Asia’s coastal environments under enormous stress. On the waterside of the coastal baseline, the primary stressors are over-exploitation of fishery resources, degradation of water quality due to land-based sources of marine pollution, and the spread of invasive species from increased maritime transportation. On the landward side, to support the needs of an ever-increasing coastal population, coastal regions accommodate colossal infrastructure like thermal and nuclear power plants, industries, mines, sewage treatment plants, major and minor ports, railways and roadways. These developments require waterfront expansion, which places excessive demands on fragile coastal ecosystems and resources, threatening their ecological resilience and sustainability. The problems are further exacerbated by dehumanizing poverty among large populations concentrated on narrow strips of coastal land, particularly in low-lying areas, such as flood plains and on the banks of estuarine environments. The consequences of rising sea levels and changing weather patterns will only aggravate this situation by increasing vulnerability and stifling future development.1 It is against this backdrop of growing environmental degradation and the threats posed by sea level rise (SLR) and climate change that the concept of sustainable coastal development (SCD) is examined. Section 4.2 delineates the concept of sustainable development, highlighting its uniqueness and centrality in international environmental law. Based on this understanding of the evolving dimensions of sustainable development, section 4.3 defines the term “sustainable coastal development” or “coastal sustainability.”

1 See generally C. Nellemann, S. Hain & J. Alder, eds, In Dead Water: Merging of Climate Change with Pollution, Over-harvest, and Infestations in the World’s Fishing Grounds (Arendal: UNEP GRID-Arendal, 2008) at 42; see also Secretariat of the Convention on Biological Diversity, Scientific Synthesis of the Impacts of Ocean Acidification on Marine Biodiversity, Technical Series No. 46 (Montreal: Secretariat of the CBD, 2009).

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004282209_��5

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The Dialectic of Sustainable Development

Since the close of the Second World War, global powers have been advancing a set of goals, under the umbrella term ‘development,’ that can be summed up simply as peace and security, economic development, social justice, human rights, and good national governance.2 At the outset, environmental protection found no place in this paradigm, as it was generally believed that pollution and degradation of the natural environment was the unavoidable cost of material progress.3 However, the fallacy of this argument became obvious as environmental destruction began to endanger the stability of life-support systems, threatened socio-economic progress, impaired the quality of national governance, and destabilized peace and security.4 Environmental considerations and general human progress were then viewed as essential elements that could not be sidelined in a developmental discourse, and the concept of sustainable development emerged as an alternative path to economic growth. Sustainable development departs from a model that is determined solely on the basis of higher gross domestic product to one that is centered on environmental protection, economic development, and social equity and justice.5 This section traces the history of sustainable development, its entrenchment in international and national environmental law, and its changing dimensions. This provides the basis for a discussion of the term SCD, which emerges as the ultimate objective of all management efforts in coastal zones.

2 John C. Dernbach, “Making Sustainable Development Happen: From Johannesburg to Albany” (2004) 8 Alb L Envtl Outlook 173 at 174–75 (HeinOnline) [Dernbach, “From Johannesburg to Albany”]; John C Dernbach, “Sustainable Development as a Framework for National Governance” (1998) 49 Case W Res L Rev 1 at 9–14 (HeinOnline) [Dernbach, “Sustainable Development”]. 3 Dernbach, “From Johannesburg to Albany”, ibid. at 175. 4 Environmental stress can be a source of conflict. World Commission on Environment & Development, Our Common Future (Oxford: Oxford University Press, 1987) at 290–94; Interview, “Of water and wars: Interview with Dr. Ismail Serageldin, Senior Vice-President, World Bank”, Frontline [of India] 16:9 (24 April 1999), online: Frontline . 5 Duncan French, International Law and Policy of Sustainable Development (Manchester: Manchester University Press, 2005) at 24–33 (apart from this triad, highlighting the element of empowerment).

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4.2.1 Sustainable Development and its Developing Contours The conception that humankind should live in harmony with the surrounding environment was a leitmotif in many ancient civilizations.6 However, this notion officially fell out of favor in the modern world until the Stockholm Conference of 1972, which emphasized the need to re-work the conventional developmental model to factor in the concept of environmental protection.7 The primary product of the Stockholm Conference was its Declaration, which, though not binding, spurred the development of international environmental law,8 with its principles and concepts later confirmed and elaborated upon in several other treaties.9 The concept received precise articulation when the World Commission on Environment and Development, chaired by then Prime Minister of Norway, Gro Harlem Brundtland, issued its 1987 landmark report titled “Our Common Future,” also known as the Brundtland Report.10 The striking aspect of the work of the Brundtland Commission was its clear recognition that the attainment of the four basic components of development necessarily requires protection of the environment.11 Subsequently, in 1992, the Earth Summit at Rio endorsed sustainable development as one of the central tenets of international environmental law, even though the Rio Declaration did not specifically define sustainable development.12 Together, the 27 principles of 6

7

8 9

10 11 12

Vice-President Weeramantry opines in Case Concerning Gabčíkovo-Nagymaros Project (Hungary/Slovakia), “[s]ustainable development is thus not merely a principle of modern international law. It is one of the most ancient ideas in the human heritage.” [1997] ICJ Rep 7; see Separate Opinion of Vice-President Weeramantry, at 107, online: Inter­ national Court of Justice ; Alex Geisinger, “Sustainable Development and the Domination of Nature: Spreading the Seed of the Western Ideology of Nature” (1999) 27 BC Envtl Aff L Rev 43 at 49 (QL). Emperor Asoka in the third century B.C. issued an edict to preserve wild life and environment. Bihar v Murad Ali Khan (1989), [1989] AIR SC 1 (India SC); see also Fomento Resorts & Hotels v Minguel Martins (2009) CA No. 4154 of 2000, ¶36 (India), online: Indian Kanoon . Lakshman Guruswamy, “International Environmental Law: Boundaries, Landmarks, and Realities” (1995) 10 Nat Resources & Env’t 43 (HeinOnline); see also Declaration of the United Nations Conference on the Human Environment, 16 June 1972, 11:6 ILM 1416. Guruswamy, ibid. Marc Pallemaerts, “The Future of Environmental Regulation: International Environmental Law in the Age of Sustainable Development: A Critical Assessment of the UNCED Process” (1996) 15 JL & Com 623 at 626–27. See generally World Commission on Environment & Development, supra note 4. Dernbach, “Sustainable Development”, supra note 2 at 19. Alhaji B.M. Marong, “From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development” (2003) 16 Geo Int’l Envtl L Rev 21 at 30–31 (QL).

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the Rio Declaration13 and the 40 chapters of Agenda 2114 laid the groundwork for States’ commitment to pursue the goal of sustainable development.15 The Earth Summit also produced three major environmental treaties: the United Nations Convention on Biological Diversity, 1992,16 the United Nations Framework Convention on Climate Change, 1992,17 and the United Nations Con­ vention to Combat Desertification, 1994,18 which also underscored the central­ ity of sustainable development. Other important outcomes of the Earth Summit were the creation of the Global Environment Facility19 and the United Nations Commission on Sustainable Development.20 Both bodies continue to play significant roles in operationalizing sustainable development. At the 2000 UN Millennium Summit, nearly 189 countries adopted the Millennium Declaration, pledging themselves to the Millennium Development Goals to 13

United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, 14 June 1992, 31:4 ILM 874 [Rio Declaration]. 14 See generally Nicholas A Robinson, ed., Agenda 21 & The UNCED Proceedings, vol. 4, 3rd series, International Protection of the Environment (New York: Oceana Publications, Inc, 1993). 15 “[H]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”. Rio Declaration, supra note 13, prin 1. Half of the Rio principles contain the norm sustainable development. George (Rock) Pring, “The 2002 Johannesburg World Summit on Sustainable Development: International Environmental Law Collides With Reality, Turning Jo’Burg Into ‘Joke’Burg’ ” (2002) 30 Denv J Int’l L & Pol’y 410 at 413 (QL). 16 United Nations Conference on Environment and Development: Convention on Biological Diversity, 1993, 5 June 1992, 31 ILM 818 (entered into force 29 December 1993); Convention on Biological Diversity, online: CBD Home . 17 United Nations Conference on Environment and Development: Framework Convention on Climate Change, 19 June 1993, 31 ILM 849 (adopted at New York 9 May 1992). 18 Even though negotiated in the framework of the UNCED, the Convention was released only two years later. United Nations: Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 21 September 1994, 33 ILM 1328 (adopted 17 June 1994). 19 Global Environment Facility: Investing in Our Planet, online: gef . 20 UN, CSD: About the CSD, online: UNSD Knowledge Platform, Inter-Governmental Process, ECOSOC, CSD (establishment of the Commission on Sustainable Development); Establishment of the Commission on Sustainable Development, E/1993/207, UNESC (12 February 1993) online: United Nations (detailing the functions of the Commission); Institutional Arrangements to Follow up the United Nations Conference on Environment and Development, A/Res/47/191, UNGA, 47th Sess (29 February 1993), online: United Nations .

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reduce poverty, improve health, promote peace and human rights, and secure environmental sustainability by 2015.21 The seventh goal calls for the integration of the principles of sustainable development into country policies and programs and to reverse the loss of environmental resources. Recently, Rio+20, which took place 20 years after the Rio Earth Summit of 1992, renewed political commitment to sustainable development. Its primary outcome document, “The future we want” emphasizes the need to “mainstream sustainable development at all levels.”22 The document focuses on the following key themes: (a) a green economy in the context of sustainable development; (b) poverty eradication; and (c) the institutional framework for sustainable development. In addition to these, the document calls for action on a wide range of areas such as energy, sustainable cities, food security and sustainable agriculture, water, oceans, and disaster readiness. As a legacy of these milestones, sustainable development has emerged as a cardinal standard to test the eco-soundness of developmental actions. The concept permeates in a majority of environmental treaties, agreements, and legislation. It is also acknowledged in a few national constitutions,23 and is increasingly utilized as a touchstone to judicially review the environmental soundness of developmental projects.24 Yet, despite its normative entrenchment, economic growth in developing countries continues to engender environmental degradation and deepening poverty. That these problems persist is a testament to the complexities of the socio-economic, and science and technology challenges involved in pursuing sustainable development.25 It is also 21

22 23

24 25

The eight Millennium Development Goals and its targets are based on the UN Millennium Declaration by which world leaders committed themselves to a new global partnership to reduce extreme poverty by 2015. See generally United Nations Millennium Declaration, GA Res 55/2, UNGA, UN Doc A/55/L.2 (2000); see also Summit on the Millennium Development Goals 20-22 September 2010, online: United Nations Millennium Development Goals . For the most recent report, see generally The Millennium Development Goals Report 2008 (New York: United Nations Department of Economic and Social Affairs, 2008). UN RIO+20 United Nations Conference on Sustainable Development, The Future We Want, A/CONF.216/L.1*, 19 June 2012, ¶3. See generally David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: UBC Press, 2012); see also Constitution of the Republic of South Africa, 1996, (S Afr), No. 108 of 1996, s. 24. Shehla Zia v WAPDA, (1994) PLD 693 (Pak SC); see also Vellore Citizens Welfare Forum v India, (1996) [1996] (5) SCC 647 (India SC) [Vellore Citizens Welfare Forum]. Even though global poverty rate will fall below 15 per cent by 2015, it will still be under the 23 percent target. The Millennium Development Goals Report 2011 (New York: United Nations Department of Economic and Social Affairs, 2011) at 7.

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evidence to the limits of hard law treaties and soft law commitments to impel realization of the tangible results expected from its pursuit.26 In a marked departure from the general pattern previously adopted to expand international environmental law by creating new hard and soft law commitments, it was resolved at the 2002 World Summit on Sustainable Development (Rio+10), held in Johannesburg, to reinvigorate the implementation of Agenda 21 and the concept of sustainable development through partnerships.27 As explained, “[t]hese ‘second type’ of outcomes . . . consist of a series of commitments and action-oriented coalitions focused on deliverables and . . . contribute in translating political commitments into action.”28 This change in emphasis acknowledges that achieving sustainable development is not the sole responsibility of a single actor, such as the United Nations or national governments. Rather, it is a process requiring input and effort from several players, including the private sector, transnational corporations, inter26

27

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S. Jacob Scherr & R. Juge Gregg, “Johannesburg and Beyond: The 2002 World Summit on Sustainable Development and the Rise of Partnerships” (2006) 18 Geo Int’l Envtl L Rev 425 at 431–32 (QL) (outlining difficulties in treaty implementation, like reluctance to utilize dispute resolution mechanisms and lack of funding). Two types of outcomes were promoted at Johannesburg. The first is type I, which refers to documents or agreements negotiated by states, including political agreements like conventions and declarations. The second, namely, Type II outcomes are a series of action-oriented deliverables that translates political commitments into action. Marion Wilson, “The New Frontier in Sustainable Development: World Summit on Sustainable Development Type II Partnerships” (2005) 36 VUWLR 389 at 392 (QL). Even though the two are interlinked, Type II partnership initiatives are not intended to substitute Type I commitments. To have WSSD status, such partnerships must be registered with the Commission on Sustainable Development. UNCSD, Report on the Eleventh Session (27 January 2003 and 28 April–9 May 2003), E/2003/29, E/CN17/2003/6, UNESC, Official Records, 2003, Supplement No. 9 (2003) ¶22. Some of the major criticisms against Type II partnerships is that it creates no legal obligations. Wilson, ibid. at 401-5. Partnerships cannot be a substitute to international treaties, rather, they should be tied to international standards, goals and objectives. Scherr & Gregg, ibid. at 425; UNESC, Partnerships for Sustainable Development: Report of the Secretary-General, E/CN.17/2004/16, Commission on Sustainable Development, 12th Sess (2004) at 3. Partnerships/Initiatives to Strengthen the Implementation of Agenda 21 (To be Elaborated by Interested Parties in Preparation for the World Summit on Sustainable Development for Launching at the Summit): Explanatory Note by the Chairman of the Preparatory Committee, Third Summit Preparatory Committee (PREPCOM 3) 25 March–5 April 2002, New York, online: Johannesburg Summit 2002, Preparatory Process, Global Level, PrepCom 3 ; Hari M Osofsky, “Defining Sustainable Development after Earth Summit 2002” (2003) 26 Loy LA Int’l & Comp L Rev 111 at 124 (QL).

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national organizations, academic institutions, civil society, and, more importantly, local communities.29 Partnerships help leverage the potential and resources that these players make available, all of which can be channeled towards attaining sustainable development goals.30 This thinking informed the two major documentary outcomes of the Johannesburg Summit. The first is the Declaration on Sustainable Development,31 a political statement reaffirming commitment to sustainable development. The second is the Johannesburg Plan of Implementation,32 which is also non-binding and aspirational, calling upon national governments to adopt measures to promote sustainable development in a multitude of areas.33 The concept of partnerships was taken a step further at Rio+20, where nearly 700 voluntary commitments mobilizing more than USD500 billion in actions involving diverse stakeholders, including national governments, the United Nations system, financial institutions and NGOs, were targeted to the implementation of sustainable development practices.34 The progression of changes in emphasis as to the elements of sustainable development as a core concept of international environmental law can be delineated: the 1972 Stockholm Conference focused on the human environment, but by 1992, the emphasis shifted to environment and development. Then at the 2002 Johannesburg Conference, the emphasis became sustainable development. This idea is now supposed to guide developmental activities to ensure that they are undertaken with a view to ensuring long-term viability of environmental and natural resources and systems.35 Though having become a 29 Wilson, supra note 27 at 392. 30 Symposium, Keynote Address, The Road from Johannesburg January 28, 2003 (2003) 15 Geo Int’l Envtl L Rev 809 at 822 (QL); but see Scherr & Gregg, supra note 26. 31 UN World Summit on Sustainable Development, Draft Political Declaration Submitted by the President of the Summit: Corrigendum, A/CONF.199/L.6/Rev.2/Corr.l (4 September 2002). 32 “Plan of Implementation of the World Summit on Sustainable Development” in UN, Report of the World Summit on Sustainable Development Johannesburg, South Africa, 26 August–4 September 2002, A/CONF.199/20* (New York: UN, 2002) at 6. 33 Ibid. at 2, ¶2. 34 Amy Cutter et al., Fulfilling the Rio+20 Promises: Reviewing Progress since the UN Conference on Sustainable Development ([np]: Natural Resources Defense Council, 2013) at 5. Some of these commitments are coast-related. Voluntary Commitments: Governments, online: RIO+20-United Nations Conference on Sustainable Development . 35 Sumudu A. Atapattu, Emerging Principles of International Environmental Law (New York: Transnational Publishers, 2006) at 91.

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fundamental norm in international and national law,36 and pronounced upon in international37 and national judicial decisions,38 it is still unclear how best its practical implications may be realized.39 Its principal conceptual formulation remains the one suggested by the Brundtland Report: [s]ustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts: the concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs. . . . In essence, sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations.40 Clearly, sustainable development, at a conceptual level, underscores the need to integrate environmental concerns into developmental decision-making. However, the terms obfuscate undercurrents and conflicts between various interests. How and who determines present needs? What is meant by not com36 37

38

39 40

For instance, see Sustainable Development Act, RSQ 2006, c D-8.1.1, s. 6. Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion, [1996] ICJ Rep 226 at 241, ¶29; Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), [2010] ICJ Rep 14; see generally On Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Case No. 17, Advisory Opinion (1 February 2011) (International Tribunal for the Law of the Sea, Seabed Disputes Chamber). For instance, see Vellore Citizens Welfare Forum, supra note 24; Andolan v India, (2000) [2000] (10) SCC 664 (India SC) (sustainable development in the context of dam construction) [Narmada Bachao Andolan]; People United for Better Living in Calcutta-Public v West Bengal, (1993) [1993] AIR 1993 215 (Calcutta HC) (sustainable development and wetland conservation). Michael McCloskey, “The Emperor has No Clothes: The Conundrum of Sustainable Development” (1999) 9 Duke Envtl L & Pol’y F 153 (WLeC). World Commission on Environment & Development, supra note 4 at 43, 46; see also International Law Association, Legal Aspects of Sustainable Development (1992–2002) New Delhi Conference: Final Conference Report (Kamal Hossain & Nico Schrijver, Members, 2002) at 6.

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promising the ability of future generations to meet their needs?41 Does ‘needs’ refer to basic needs or does it imply something broader?42 And does this definition mask an anthropocentric bias?43 These questions indicate that, among other things, there is no specific roadmap to sustainability. Thus, even if the concept falls within the ambit of customary international law,44 and regardless of governmental commitments to its tenets and the growing tendency of the general public to internalize a green culture, ecosystems continue to degrade, and poverty and pollution remain widespread.45 The failure to work out sustainability at micro- and macrospatial scales questions what economic growth and development actually mean and imply. The World Commission on Environment and Development had emphasized that in certain circumstances, it is necessary to see “[s]ustainable development [as involving] more than growth. It requires a change in the content of growth, to make it less material- and energy-intensive and more equitable in its impact.”46 In other words, this transformation necessitates refocusing developmental efforts to highlight limitations on exploitation and consumption of natural resources.47 For instance, a hydropower plant should not be viewed merely as a means to produce more electricity. Rather, the consequences of the project on the environment, on local communities, on marginalized sections, and even future generations should be given due consideration. If it is not possible to secure the balance espoused by sustainable development, abandonment of 41

“[S]ustainable development has become a buzzword largely devoid of content . . . a concept [that] provides little policy traction.” Daniel C. Esty, “A Term’s Limits: Many flocked to the banner of sustainable development, but it led them nowhere”, Foreign Policy (1 September 2001) at 74–75. Sustainable development is only a manifestation of Western ideology and it equates human quality of life with economic growth and views nature only as a useful resource to man. Geisinger, supra note 6 at 66–67. 42 Felix Rauschmayer et al., What About Needs? Re-conceptualising Sustainable Development (Sustainable Europe Research Institute (SERI) Working Paper No. 8, 2008) at 14. 43 Ole Pedersen, Alwin Pillai & Anne-Michelle Slater, “Justice and Sustainable Development: Compatibility or Conflict? A Scottish Case Study” in Duncan French, ed., Global Justice and Sustainable Development, Legal Aspects of Sustainable Development (Leiden: Martinus Nijhoff Publishers, 2010) 363 at 370–71. 44 Sustainable development falls short of a principle of customary international law and is more a legitimate expectation. Marong, supra note 12. 45 Emily Fisher, “Sustainable Development and Environmental Justice: Same Planet, Different Worlds?” (2002) 26 Environs Envtl L & Pol’y J 201 at 202 (HeinOnline). 46 World Commission on Environment & Development, supra note 4 at 52. 47 Ibid. at 53.

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the project on the grounds that it will disturb a rare ecological system can be “a measure of progress, and not a setback to development.”48 Clearly, the emphasis should not be on short-term economic gains, but on long-term, sustained, economic growth. Such an approach requires cautious exploitation of resources with an eye to ensuring distributive equity in the benefits of growth for present and future generations. The wisdom of not pursuing development in certain cases where the social and environmental costs are too high has not yet found widespread acceptance, particularly in South Asia, where the pressure of need and the urgency to supply it justifies the pursuit of short-term and myopic economic projects without much thought for their environmental and other adverse impacts.49 In this region, this trend is exacerbated by the far-reaching consequences of the changes presently occurring in the climate system. In fact, in South Asia, it could be said that sustainable development been reduced to tokenism; a convenient label pasted over a development project to pass off its environmental credentials, when in the majority of cases, the projects are environmentally indefensible.50 Conceptually, our present understanding of sustainable development is rooted in the idea that “the possibilities open to people tomorrow should not differ from those open today. . . .”51 This perception traces to the days following de-colonization, and, the rise of communism, when, in the newly independent and in the socialist and communist states, development was spearheaded by the state.52 The fall of socialism led development thinking towards privatization, deregulation, free-market economy, liberalization and globalization. In the developing nations, the replacement of state control by structural

48 49 50

Ibid. at 54 [emphasis added]. For instance, see Narmada Bachao Andolan, supra note 38. Thankfully, this did not happen in the South Indian state of Kerala where it was decided to forgo developmental benefits in the interests of conservation by dropping the Silent Valley Hydro Project. World Commission on Environment & Development, supra note 4 at 54; see also ibid. at 66, note 4; but see generally, Tony George Puthucherril, From Shipbreaking to Sustainable Ship Recycling: Evolution of a Legal Regime, David Freestone, ed., 5 Legal Aspects of Sustainable Development (The Netherlands: Martinus Nijhoff, 2010) [Puthucherril, Shipbreaking]; see also Pring, supra note 15 at 412. 51 UNDP, Human Development Report 2011: Sustainability and Equity: A Better Future for All (New York: UNDP, 2011) at 17 [UNDP, HDR 2011]. 52 Dani Rodrik, “The ‘Paradoxes’ of the Successful State” (1997) 41:3–5 Eur Econ Rev (Paper and Proceedings of the Eleventh Annual Congress of the European Economic Association) 411 at 412 (ScienceDirect).

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adjustment programs led to a new emphasis on private enterprise.53 Non-state actors and the invisible hand of the market fuelled development.54 While considerable material progress was achieved and large sections of society began to experience improved living standards, it soon became apparent that the gap between the haves and the have-nots was widening, discrediting the “Kuznets curve” hypothesis.55 Wealth remains concentrated in the hands of a small segment of society, and the consumption patterns associated with such growth, unsustainable.56 Meanwhile, the majority of the world’s population continues

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54 55

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For instance, see generally László Muraközy, The Centrally Planned “Invisible Hand”— The Case of Hungary (TIGER Working Paper Series No. 119, Warsaw, 2010). Market reform during the first five years in Hungary was a monumental disaster in terms of its impact on social welfare. Kent Klaudt, “Hungary After the Revolution: Privatization, Economic Ideology and the False Promise of the Free Market” (1995) 13 Law & Ineq 303 (HeinOnline); Richard D. Cudahy, “From Socialism to Capitalism: A Winding Road” (2010) 11 Chi J Int’l L 39 (HeinOnline); see generally Roman Frydman, Andrzej Rapaczynski & John S. Earle et al., The Privatization Process in Russia, Ukraine and the Baltic States, vol 2, Central European University Privatization Reports (London: Central European University Press, 1993). Muraközy, ibid. The concept states that as income inequality follows an inverse-U shape along the development process, which first rises with industrialization and then declines as more workers join the high productivity sectors of the economy. See generally Thomas Piketty, “The Kuznets Curve: Yesterday and Tomorrow” in Abhijit Vinayak Banerjee, Roland Bénabou & Dilip Mookherjee, eds, Understanding Poverty (New York: Oxford University Press, 2006) 63; see generally Income inequality rises first and then drops with development. Jeffrey G. Williamson, “British Inequality During the Industrial Revolution: Accounting for the Kuznets Curve” in Y.S. Brenner, Hartmut Kaelble & Mark Thomas, eds, Income Distribution in Historical Perspective (Cambridge: Cambridge University Press, 1991) 57. Despite tremendous progress, the world faces huge backlogs of deprivation and inequality. Poverty is omnipresent. Nearly 1.3 billion people live on an income of less than USD1 a day. Even in industrialized countries, there is enormous disparity—one of eight are affected by some aspect of human poverty. UNDP, Human Development Report 1999: Overcoming Barriers: Human Mobility and Development (New York: Oxford University Press, 1999) at 28; but see Abdul Jalil, “Modeling Income Inequality and Openness in the Framework of Kuznets Curve: New Evidence from China” (2012) 29 Econ Modelling 309 (ScienceDirect) (suggesting that while the opening up of the economy in 1978 by China led to unprecedented economic growth, it also led to severe economic inequality). “While poverty results in certain kinds of environmental stress, the major cause of the continued deterioration of the global environment is the unsustainable pattern of consumption and production, particularly in industrialized countries . . .” Robinson, ed., supra note 14, ch. 4, ¶4.3.

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to live in varying degrees of poverty, having very little or no access to natural resources and other developmental benefits.57 Thus, it quickly became clear that the failure of economic reforms to produce inclusive growth would stymie long-term development. As such, the concept of, and criteria for assessing true development must be reconceived. John Rawls, in his theory of “Justice as Fairness,” sought to tone down the excesses of the market economy58 through his “difference principle” which allows for inequalities in income and wealth, but emphasizes that those who are better off can be so only if those at the bottom are also made better off.59 A similar view is adopted by Amartya Sen in “Development as Freedom,” which prioritizes the well-being of humans as both the goal and the means for development.60 For Professor Sen, development is a process of expanding “the real freedoms that people enjoy,”61 since achieving development requires the removal of poverty, tyranny, lack of economic opportunities, social deprivation, and neglect of public services.62 This nuanced understanding of development is more clearly articulated in the United Nations Development Programme (UNDP) Human

57

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60 61

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It is becoming clear that climate change related processes is reversing developmental gains. World Bank, World Development Report 2010: Development and Climate Change (Washington DC: World Bank, 2010) at 39–44 [World Bank, WDR 2010] (discussing the negative impacts of climate change on development). See generally John Rawls, A Theory of Justice, 1st ed. (Oxford: Oxford University Press, 1999); John Rawls, Justice as Fairness: A Restatement, ed. by Erin Kelly (Massachusetts: Harvard University Press, 2001) at 61–66. See generally Rex Martin, “Rawls’s New Theory of Justice” (1994) 69 Chicago-Kent L Rev 737 (QL); David Elkins, “Responding to Rawls: Toward a Consistent and Supportable Theory of Distributive Justice” (2007) 21 BYU J Pub L 267 (QL); Xiaobing Xu & George Wilson, “On Conflict of Human Rights” (2006) 5 Pierce L Rev 32 (HeinOnline). See generally Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999). See generally ibid. (arguing for a development model that enhances people’s capabilities in contra-distinction to an approach that focuses solely on income enhancement). The elaboration of the “Human Development Approach,” or the “Capability Approach,” has been “the most important theoretical development in human rights during the past two decades” and has been operationalized in the Human Development Reports of the United Nations Development Programme. Martha Nussbaum, “Human Rights and Human Capabilities” (2007) 20 Harv Hum Rts J 21 (WLeC). Sen identifies five freedoms as instrumental to this goal and consequently vital to overall economic development: political freedoms, economic facilities, social opportunities, transparency guarantees, and protective security. Sen, supra note 60 at 38.

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Development Report series beginning in 1990.63 This new insight tells us that development has to do with the expansion of human capabilities.64 Therefore, ‘sustainable human development’ is “the expansion of the substantive freedoms of people today, while making reasonable efforts to avoid seriously compromising those of future generations.”65 Thus, notwithstanding its generality, sustainable development has evolved into a seminal principle that exerts influence over all aspects of the interface between environment and development; it seeks to place development on pathways that are environmentally sound.66 Sustainable development replaces the context and tenor of economic development, viewing it as qualitative improvement of human life rather than a quantitative expansion of economic wealth.67 In effect, people are the core focus of sustainable development, and this represents a paradigmatic shift in the way in which development was previously understood, more so for assimilating the aspiration of environmental protection with human development objectives. The composite new belief is that “[p]rotecting the environment is part of what progress means; it is not the price of progress.”68 Sustainable development views the quintessentially discrete concepts of environment protection and development as synergistic and not antagonistic forces. Seeking to bridge the apparent disconnect between the two, its primary focus is to improve the quality of life without increasing natural resource use beyond the carrying capacity of the ecosystem.69 The influence and value of this ideal has been likened to modern civilization’s regard for democracy, the

63

“Human development is a process of enlarging people’s choices”. UNDP, Human Development Report 1990 (New York: Oxford University Press, 1990) at 1. “Human development is the expansion of people’s freedoms and capabilities to lead lives that they value and have reason to value. It is about expanding choices”. UNDP, HDR 2011, supra note 51 at 1. 64 UNDP, HDR 2011, ibid. 65 Ibid. at 18. 66 A.V. Lowe, “Sustainable Development and Unsustainable Arguments” in A.E. Boyle & D. Freestone, eds, International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford: Oxford University Press, 1999) 19 at 31. 67 French, supra note 5 at 13–14. 68 John C. Dernbach, “Sustainable Versus Unsustainable Propositions” (2002) 53 Case W Res L Rev 449 at 450 (HeinOnline). 69 Robert John Araujo SJ, “Rio+10 and the World Summit on Sustainable Development: Why Human Beings Are at the Center of Concerns” (2004) 2 Geo JL & Pub Pol’y 201 at 203 (QL).

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rule of law, justice, liberty, and human rights.70 Naturally, every nation seeks to espouse it and its principles.71 But sustainable development does not prescribe a normative one-sizefits-all approach to developmental issues. However, it finds extensive application in varied contexts, including international trade,72 shipbreaking,73 tourism,74 fishing,75 ocean governance,76 agriculture,77 water management,78

70 Lowe, supra note 66. 71 Christina Voigt, Sustainable Development a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law (Lieden: Martinus Nijhoff, 2009) at 3. 72 See General Agreement on Tariffs and Trade-Multilateral Trade Negotiations (The Uruguay Round): Agreement Establishing the Multilateral Trade Organization [World Trade Organization], 15 December 1993, 33 ILM 13, pmbl. “International trade can play a major role in the promotion of economic development and the alleviation of poverty . . .” and since “the majority of WTO Members are developing countries . . . we seek to place their needs and interests at the heart of the WTO Work Programme . . .” World Trade Organization (WTO)—Doha Ministerial 2001: Ministerial Declaration, 14 November 2001, Wt/Min(01)/Dec/I 20 November 2001, 41 ILM 746, ¶2. Furthermore, the Ministers strongly confirmed their commitment ‘to the objective of sustainable development, as stated in the Preamble of the Marrakesh Agreement’: ‘We are convinced that the aims of upholding and safeguarding an open and non-discriminatory multilateral trading system, and acting for the protection of the environment and the promotion of sustainable development can and must be mutually supportive’ (¶6). 73 International Conference on the Safe and Environmentally Sound Recycling of Ships: Agenda Item 8, Adoption of the Final Act and Any Instruments, Recommendations and Resolutions Resulting from the Work of the Conference: Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009, Text Adopted by the Conference, IMO/SR/CONF/45, 19 May 2009 (opened for signature 1 September 2009); see generally Puthucherril, Shipbreaking, supra note 50. 74 Alison Gill et al., “The Challenges of Integrating Tourism into Canadian and Australian Coastal Zone Management” (2003) 26 Dalhousie LJ 85 at 90 (HeinOnline). 75 For instance, see generally FAO, Code of Conduct for Responsible Fisheries (Rome: FAO, 1995); UNGA, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, A/ CONF 164/37, 8 September 1995, 34 ILM 1542 (entered into force 11 December 2001). 76 For instance, see United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397, 21 ILM 1261 (entered into force 16 November 1994), part XII. 77 FAO International Treaty on Plant Genetic Resources for Food and Agriculture, Rome 3 November 2001, FAO Conference Res 3/2001, S Treaty Doc No. 110–19, art. 1.1 (entered into force 29 June 2004). 78 UN: Convention on the Law of the Non-navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700.

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health,79 and forestry.80 Additionally, with the emergence of Type II partnerships as a means to implement normative prescriptions, sustainable development has become more broad-based and practice-oriented. Its application seeks to coalesce and balance human development, environment protection and social justice irrespective of the concrete context. As an overarching concept, sustainable development also now shapes approaches to dealing with the impacts of climate change. Within a sustainable development context,81 the notion of “environment” includes the climate system82 consisting of five core components: the atmosphere,83 hydrosphere,84 cryosphere,85 land surface,86 and the biosphere.87 To maintain equilibrium,88 several complex physical, chemical, and biological interactions take place between and among these systems across a wide range of space and time scales.89 However, the green house effect triggers a series of perturbations that can disrupt climate equilibrium, leading to environmental upheavals that make it virtually impossible to balance environmental and developmental imperatives that the sustainable development paradigm requires for fruition.90 79

Hans Christian Bugge & Lawrence Watters, “A Perspective on Sustainable Development after Johannesburg on the Fifteenth Anniversary of Our Common Future: An Interview with Gro Harlem Brundtland” (2003) 15 Geo Int’l Envtl L Rev 359 at 364 (HeinOnline). 80 For more on sustainable forest management, see A Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, 13 June 1992, 31 ILM 881. 81 World Commission on Environment & Development, supra note 4 at 43, 46. 82 For instance, see Canadian Environmental Protection Act, SC 1999, c 33, s 3(1). 83 A.P.M. Baede, “The Climate System: An Overview” in J.T. Houghton et al., eds, Climate Change 2001: The Scientific Basis (Cambridge: Cambridge University Press, 2001) 85 at 87. 84 Moritz Bollmann et al., World Ocean Review 2010: Living with the Oceans (Hamburg: Maribus, 2010) at 9. 85 Ibid. 86 Baede, supra note 83 at 89. 87 Ibid. 88 For long, the dominant paradigm that influenced the development of environmental law was the equilibrium model. This paradigm has since been rejected in ecology, replaced with a complex, stochastic nonequilibrium one. A. Dan Tarlock, “The Nonequilibrium Paradigm in Ecology and the Partial Unraveling of Environmental Law” (1994) 27 Loy LA L Rev 1121 (HeinOnline); A. Dan Tarlock, “Biodiversity and Endangered Species” in John C. Dernbach, ed., Stumbling Towards Sustainability (Washington, DC: Environmental Law Institute, 2002) 311 at 318–319; see also Douglas J Spieles, Protected Land: Disturbance, Stress, and American Ecosystem Management, Springer Series on Environmental Management, 1st ed. (New York: Springer, 2010) at 27–28. 89 Spieles, ibid. 90 Baede, supra note 83 at 92–93.

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Climate change has the capacity to adversely impact the entire planet and all sectors of human activity. As observed by the Human Development Report, “[c]limate change may be the single factor that makes the future very different, impeding the continuing progress in human development.”91 The World Development Report also notes that “[l]eft unmanaged, climate change will reverse development progress and compromise the well-being of current and future generations. . . . Impacts will be felt everywhere, but much of the damage will be in developing countries.”92 Clearly, climate change has the potential not only to upset, but also to reverse the developmental gains that have been achieved over the years.93 Given the pervasiveness and complexity of climate change, if sustainable development is to be attained, then states must reorient their development paths by means of mitigative measures to limit carbon-intensive growth, and adopt steps to adapt to climate change impacts.94 Indeed, mitigation and adaptation measures, and the other elements of sustainable development, namely, economic development, environmental protection, and social justice, are all intrinsically linked, because the hazards associated with climate change have the potential to undermine progress.95 Figure 2 depicts a contemporary understanding of sustainable development. Today, sustainable development requires that development should not only be environmentally friendly but it should also be “climate compatible.”96 Therefore, sustainable development initiatives must explicitly consider the hazards and risks associated with climate change and provide for the means 91 UNDP, Human Development Report 2010: 20th Anniversary Edition: The Real Wealth of Nations: Pathways to Human Development (New York: UNDP, 2010) at 102. 92 World Bank, WDR 2010, supra note 57 at 36. 93 Yields of major crops in India are projected to decline by 4.5 to 9 per cent within the next three decades. Ibid. at 40. 94 Prominent examples include the construction of the Confederation Bridge (connects Prince Edward Island with mainland Canada) and the Qinghi-Tibet railroad. W. Neil Adger, Shardul Agrawala & M. Monirul Qader Mirza, “Assessment of Adaptation Practices, Options, Constraints and Capacity” in M.L. Parry et al., eds, Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 717 at 724. 95 Adaptation coupled with mitigation is as one of the ways to achieve sustainable development. Armin Rosencranz, Dilpreet Singh & Jahnavi G. Pai, “Climate Change Adaptation, Policies, and Measures in India” (2010) 22 Geo Int’l Envtl L Rev 575 at 576 (QL). 96 Tom Mitchell & Simon Maxwell, “Defining climate compatible development”, Climate & Development Knowledge Network: Policy Brief (November 2010) at 1.

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Environmental Protection

Social Justice and Equity

Sustainable Development

Development

Climate Change Mitigation and Adaptation

Figure 2

Elements of Sustainable Development

to reduce the same through conscientious pursuit of mitigation and adaptation in regard to all developmental activities. For example, development projects should promote climate resilience and leave the smallest possible carbon footprint.97 This way, sustainable development would well balance social, economic and environmental objectives within a climate-friendly frame of activities. What this balance means in relation to development activity in the coastal zone is now examined.

97

Core Writing Team, Rajendra K. Pachauri & Andy Reisinger, eds, Climate Change 2007: Synthesis Report (Geneva: Intergovernmental Panel on Climate Change, 2008) at 56–62.

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Sustainable Coastal Development

The narrow littoral ribbons of land and adjoining salt waters where terrestrial and marine environments meet are fast emerging as laboratories for testing sustainable development ideas.98 This is no simple task, as “[t]he qualities that have made coastal regions so critically important to our species are already under great pressure.”99 Hence, one has to physically design and carry out activities in pursuit of SCD. This idea has been defined as “enhancing the capacity of current and future generations to realize their human potential, within the context of maintaining diverse, healthy and productive coastal ecosystems.”100 Rather than forestalling coastal development, the objective is to strike a balance between development and coastal environmental protection objectives to ensure social equity, particularly in relation to the ability of impoverished coastal communities to access and enjoy limited coastal resources.101 Practically, this calls for undertaking mitigative and adaptive actions to improve the quality of life of coastal communities, augment their adaptive capacity and readiness to cope with the uncertainties associated with SLR and other climate change hazards. A classical example of a SCD strategy would be the creation of a mangrove plantation. As we saw in chapter two, mangroves are part of the blue carbon panoply because of their enhanced potential to sequester carbon. They also secure livelihood opportunities for coastal populations, and buffer shorelines against the erosive impacts of harmful waves. All together, the actions carried out must not undermine or compromise the carrying capacity of coastal ecosystems while enhancing human development. 98

Stephen B. Olsen, “Educating for the Governance of Coastal Ecosystems: The Dimensions of the Challenge” (2000) 43 Ocean & Coast Mgmt 331 at 332 (ScienceDirect). 99 Ibid. 100 Coastal Management Policy Programme, White Paper for Sustainable Coastal Development in South Africa: Our Coast, Our Future (Department of Environmental Affairs and Tourism, April 2000). Defining a sustainable coast in the context of the Mediterranean, as one that exhibits the following five features, namely, resilience (resilient to future uncertainties of climate change, including rising sea levels); productive; diverse; distinctive; attractive; and healthy. The ICZM Process—a Roadmap towards Coastal Sustainability—Introduction, online: pegasoproject.eu, ICZM Process . 101 “[T]he key is not only to manage the use of ecosystems, and the goods and services they provide, but to manage and regulate human activity to avoid jeopardizing their functional integrity.” Chua Thia-Eng, The Dynamics of Integrated Coastal Management: Practical Applications in the Sustainable Coastal Development in East Asia (Quezon City: GEF/UNDP/IMO Regional Programme for the Prevention and Management of Marine Pollution in the East Asian Seas, 2006) at 76.

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As the end goal of all coastal zone management efforts, SCD can be pursued through observance of ICZM prescriptions. In fact, SCD is the goal and ICZM the means to successfully implementing the mitigative and adaptive measures that sustainable development in the coastal zone requires in this era of climate change. The details of how this may be observed, is the focus of chapter five to follow. 4.4 Conclusion The objective of this chapter is to show that while sustainable development has generic relevance in terms of its application to coastal zone development, its purpose must be tailored to the realities that contextualize dependence upon and the preservation of that area’s resources and ecosystems. The application must, in particular, prioritize attention to enhancing the welfare of coastal populations and their enablement to adapt to the factors that incessantly assault and reshape the coast, their home, and the resources that sustain their lives in that environment. In sum, SCD, like its antecedent derivatives, seeks a convergence of social equity, economic development and environmental protection, especially in regard to climate change impacts (mitigation and adaptation). The need for this balance is particularly acute in South Asia.

chapter 5

Linking Coastal Climate Change Adaptation to an Integrated Coastal Zone Management Process for Sustainable Coastal Development 5.1 Introduction The conceptual foundations of integrated coastal zone management (ICZM) can be traced to the mid-1960s when the San Francisco Bay Conservation and Development Commission was established in response to a growing awareness that the environmental problems pertaining to the coast required focused attention.1 Initially known simply as coastal zone management (CZM), the concept received a boost with the enactment of the US Federal Coastal Zone Management Act, 1972.2 A decade later, the term ‘integrated coastal zone management’ emerged, and pilot programs were initiated in the coastal countries of Ecuador, Sri Lanka, and Thailand by the U.S. Agency for International Development, and the Coastal Resources Center at the University of Rhode Island played an important role in its popularization.3 However, the utility of ICZM was not acknowledged until the Earth Summit, 1992. Chapter 17 of Agenda 21 that emerged from that conference can be seen as the ‘Rosetta Stone’ of sustainable coastal development (SCD), for its invaluable insights into how sustainable development is to be operationalized in relation to the marine and coastal environments.4 Chapter 17 of Agenda 21 called upon coastal

1 Chua Thia-Eng, The Dynamics of Integrated Coastal Management: Practical Applications in the Sustainable Coastal Development in East Asia (Quezon City: GEF/UNDP/IMO Regional Programme for the Prevention and Management of Marine Pollution in the East Asian Seas, 2006) at 14 [Thia-Eng, Dynamics of Integrated Coastal Management]. 2 Pub L. No. 92–583, 86 Stat 1280 (codified as amended at 16 USC §1451–1464 (West 1985 & Supp 1999)). 3 Jens Sorensen, “National and International Efforts at Integrated Coastal Management: Definitions, Achievements, and Lessons” (1997) 25:1 Coastal Mgmt 3 at 13 [Sorensen, “National and International Efforts”]; see also Chua Thia-Eng, “Essential Elements of Integrated Coastal Zone Management” (1993) 21 Ocean & Coast Mgmt 81 at 82 [Thia-Eng, “Essential Elements”]. 4 James Tobey & Richard Volk, “Learning Frontiers in the Practice of Integrated Coastal Management” (2002) 30 Coastal Mgmt 285 at 288.

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states to formulate and implement coastal management programs,5 leading to an upsurge in ICZM activities. Another major catalyst was the significant rise in investments in coastal and marine related projects by multilateral and bilateral donor agencies.6 While in 1993 only 57 nations were engaged in CZM activities, by 2002, the number had doubled, and nearly 95 coastal nations or semi-sovereign states had some sort of ICZM activities in place. Interestingly, the majority of these programs were from the developing world.7 This chapter begins by defining the concept of ICZM. It draws on definitions proposed by academics and international organizations to capture the essence of the concept. This is followed by an examination of the structure of an ICZM process. As the basic methodological tool to secure SCD, the core principles that help to operate an ICZM process are described, and some of the major criticisms against it are examined in section 5.4. Section 5.5 argues for the necessity of climate change adaptation approaches to the management of the utilisation of coastal and marine resources and environments, and section 5.6 considers the practical advantages of linking coastal climate change adaptation (CCCA) to an ICZM process. The penultimate indispensability of ICZM to achieving SCD is reaffirmed to conclude this chapter. 5.2

Defining ICZM

Various definitions have been offered to describe ICZM.8 Leading academics define ICZM as:

5 Nicholas A. Robinson, ed., Agenda 21 & The UNCED Proceedings, vol. 4, 3rd series, International Protection of the Environment (New York: Oceana Publications, Inc, 1993) at 307, ch. 17, ¶17.6(b); see also Biliana Cicin-Sain, “Earth Summit Implementation: Progress Since Rio” (1996) 20:2 Mar Pol’y 123 at 126–7 (ScienceDirect). 6 Stefano Belfiore, “The Growth of Integrated Coastal Management and the Role of Indicators in Integrated Coastal Management: Introduction to the Special Issue” (2003) 46 Ocean & Coast Mgmt 225 at 226 (ScienceDirect); see also Maren Lau, “Integrated Coastal Zone Management in the People’s Republic Of China—An Assessment of Structural Impacts on Decision-Making Processes” (2005) 48 Ocean & Coast Mgmt 115 at 117 (ScienceDirect). 7 Jens Sorensen, Baseline 2000 Background Report: The Status of Integrated Coastal Management as an International Practice, Coastal Zone Canada Association, Baseline 2000 (2nd Iteration, 2002) at 3-1 [Sorensen, Baseline 2000]. 8 At minimum, 29 key guidance documents have been produced over the past decade and a body of knowledge on important integrated coastal management principles. Sorensen, Baseline 2000, ibid. at annex F.

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a continuous and dynamic process by which decisions are taken for the sustainable use, development, and protection of coastal and marine areas and resources. ICM acknowledges the interrelationships that exist among coastal and ocean uses and the environments they potentially affect, and is designed to overcome the fragmentation inherent in the sectoral management approach.9 Similarly, for Chua Thia-Eng, ICZM is a resource management system, which employs an integrative, holistic approach and an interactive planning process in addressing the complex management issues in the coastal area. It could serve as the blueprint for attaining the goals and objectives of sustainable development by: maintaining the functional integrity of the coastal resource systems; reducing resource-use conflicts; maintaining the health of the environment; facilitating the progress of multi-sectoral development.10 A five-day workshop of ICZM practitioners from 28 countries, in Charleston, USA, in 1989, reviewed the progress of ICZM up to that time. The scholarly gathering agreed that ICZM is “a dynamic process in which a coordinated strategy is developed and implemented for the allocation of environmental, socio-­cultural, and institutional resources to achieve the conservation and sustainable multiple use of the coastal zone.”11 It decided that an ICZM process should have the following five attributes: 1) it should be spread over a considerable period of time; 2) it must have a governance arrangement to establish policies for making allocation decisions; 3) the governance arrangement should use one or more management strategies to rationalize and systemize allocation decisions; 4) the management strategies should be selected based on a systems perspective which recognizes interconnections among coastal systems; and, 5) there should be a geographic boundary that extends from the ocean environment across the transitional shore environments to some inland limit.12 9

10 11 12

Biliana Cicin-Sain et al., “Education and Training in Integrated Coastal Management: Lessons from the International Arena” (2000) 43 Ocean & Coast Mgmt 291 (ScienceDirect) [Cicin-Sain et al., “Education and Training”]. Thia-Eng, “Essential Elements”, supra note 3 at 84. Jens Sorensen, “The International Proliferation of Integrated Coastal Zone Management Efforts” (1993) 21 Ocean & Coast Mgmt 45 at 49. Ibid. at 49–50.

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The European Union broadly defines ICZM as: a dynamic, continuous and iterative process designed to promote sustainable management of coastal zones. ICZM seeks, over the long-term, to balance the benefits from economic development and human uses of the Coastal Zone, the benefits from protecting, preserving, and restoring Coastal Zones, the benefits from minimizing loss of human life and property, and the benefits from public access to and enjoyment of the Coastal Zone, all within the limits set by natural dynamics and carrying capacity. The word ‘Integrated’ in ICZM refers both to the integration of objectives and to the integration of the multiple instruments needed to meet these objectives. It means integration of all relevant policy areas, sectors, and levels of administration. It means integration of the terrestrial and marine components of the target territory. ICZM is integrated in both time and space, and is inherently multi-disciplinary. ICZM should certainly not be just pigeon-holed under ‘environment’. Although ICZM refers to ‘management’, in fact, the ICZM process covers the full cycle of information collection, planning, decision-making, management and monitoring of implementation. ‘Planning’ is thus intended in its broadest sense, to mean strategic policy development, rather than only land use planning or other sectoral planning. . . .13 For the World Bank, ICZM is: [a] process of governance and consists of the legal and institutional framework necessary to ensure that development and management plans for coastal zones are integrated with environmental (including social) goals and are made with the participation of those affected. The purpose of ICZM is to maximize the benefits provided by the coastal zone and to minimize the conflicts and harmful effects of activities upon each other, on resources and on the environment.14

13 EC, Towards a European Integrated Coastal Zone Management (ICZM) Strategy: General Principles and Policy Options A Reflection Paper (Luxembourg: Office for Official Publications of the European Communities, 1999) at 16. 14 Jan C. Post & Carl G. Lundin, eds., Guidelines for Integrated Coastal Zone Management, Environmentally Sustainable Development Studies and Monographs Series No. 9 (Washington, DC: The World Bank, 1996) at 1.

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The GESAMP defines [i]ntegrated Coastal Management (ICM) [a]s a process that unites government and the community, science and management, sectoral and public interests in preparing and implementing an integrated plan for the protection and development of coastal ecosystems and resources. The overall goal of ICM is to improve the quality of life of human communities who depend on coastal resources while maintaining the biological diversity and productivity of coastal ecosystems.15 The Mediterranean ICZM protocol, the first supra-national binding legal instrument on ICZM16 concluded among Mediterranean coastal states, defines it as a dynamic process for the sustainable management and use of coastal zones, taking into account “the fragility of coastal ecosystems and landscapes, the diversity of activities and uses, their interactions, the maritime orientation of certain activities and uses and their impact on both the marine and land parts.”17 The Intergovernmental Panel on Climate Change (IPCC) in its Fifth Assessment Report (AR5) defines ICZM as a long-term, institutionalized and iterative process that promotes the integration of coastal activities, relevant policy makers, practitioners and scientists across coastal sectors, space and organizations with a view to use coastal resources in a sustainable way.18 From the above, it is apparent that ICZM is a fairly established idea in coastal governance. Its management and ecological objective is to control the 15

16

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IMO/FAO/UNESCO-IOC/WMO/WHO/IAEA/UN/UNEP & Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP), The Contributions of Science to Integrated Coastal Management Food and Agriculture Organization of the United Nations, GESAMP Rep Stud No. 61 (Rome, 1996). Julien Rochette, Raphaël Billé & IDDRI, Analysis of the Mediterranean ICZM Protocol: At the Crossroads between the Rationality of Provisions and the Logic of Negotiations [nd] at 4, online: CIRCLE-MED . Protocol on Integrated Coastal Zone Management in the Mediterranean, [2009] OJ L 34/19, [ICZM Protocol], art. 2(f). Climate Change 2014: Impacts, Adaptation, and Vulnerability: IPCC Working Group II Contribution to AR5 at 33, online: IPCC [Fifth Assessment Report].

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d­ estruction of the coastal environment through sound proactive planning to restore the health of degraded systems and to ensure their continual productivity. Socially, ICZM is intended to improve the quality of life of coastal communities so that they derive the maximum benefits from the functions and values provided by coastal ecosystems. To achieve these objectives, ICZM demands a break from past management approaches that characterized coastal governance in most coastal countries. The transformation must be based on multidisciplinary and participatory strategies that combine and build on traditional and modern coastal management practices. Essentially, it is a proactive response, not a reactive or ad hoc one. As a process, it is iterative and discursive, and seeks to harmonize the multitude of sectoral, economic, social and environmental policies and plans that operate in coastal management and it reflects and harmonizes the varying interests of various coastal stakeholders into a comprehensive and systematic structure of administrative functions to achieve SCD. ICZM exhibits five defining features: 1) it is a dynamic process imbued in adaptive management; 2) it is a roadmap to the ultimate objective of SCD; 3) it seeks to secure spatial integration, i.e., integration between the dry and wet sides of the coast; 4) it is based on bottom-up and decentralized approaches to coastal management; and 5) ICZM does not displace sectoral management; rather, it harmonizes the different sectoral efforts in a web to produce a more holistic management response to the challenges of coastal zone governance. As discussed in chapter three, (in relation to the Indus and the GangesBrahmaputra delta) rivers play a major role in maintaining coastal health. Accordingly, it is recommended to link ICZM with river basin or catchment management, and is christened as “Integrated Coastal Area and River Basin Management.”19 Similarly, as activities further off-shore, such as fisheries exploitation, offshore oil and sediment extraction, shipping, and other toxic chemical spillage can severely impact the coastal environment, there is a tendency to approach ICZM as part of a broader “Integrated Maritime Policy.” There are growing demands to fit this management process “with . . . oceans-based initiatives, such as maritime or marine spatial planning.”20 While drawing linkages 19

20

Ramsar, Wetlands: Water, Life, and Culture” 8th Meeting of the Conference of the Contracting Parties to the Convention on Wetlands (Ramsar, Iran, 1971) Valencia, Spain, 18–26 November 2002, Resolution VIII.4: Principles and Guidelines for Incorporating Wetland Issues into Integrated Coastal Zone Management (ICZM), annex, prin 8. Aldo Chircop & Ryan O’Leary, “Legal Frameworks for Integrated Coastal and Ocean Management in Canada and the European Union: Some Insights from Comparative

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with these and other processes have relevance and can contribute to sustainable development, by themselves they are all unique processes and are independent of each other. 5.3

Decoding ICZM: The Devil is in the Details

Being dynamic but nebulous, ICZM can take various forms, depending on the circumstances and issues that confront a country’s coastline, the nature of its coastal resources and biodiversity, and its developmental priorities. This picture is complicated by an absence of a dedicated and binding international legal instrument on ICZM to provide the fundamental rules of the practice.21 Still, certain common traits unique to it can be discerned from guidance documents, academic writing, regional protocols and other instruments, in addition to national ICZM action plans and strategies. A few of these are relayed here to indicate a pattern structure for an ICZM process. A unique feature of ICZM is that primarily, it envisages a partnership between various stakeholders for effective coastal management. As noted in chapter four, the general failure of convention-based approaches to realize sustainable development goals led to the emergence of international partnerships to coordinate development actions by multiple actors.22 Akin to this approach, ICZM seeks to achieve SCD by providing a platform for a range of players to come together and pool their resources and management efforts to make strategic plans for holistic CZM.23 The central feature of the ICZM process is that its conceptual foundations are based on sustainability principles, which guide its development and

21 22 23

Analysis” 13:3 (2012) Vt J Envtl L 425 at 442 (HeinOnline); see also EC, Proposal for a Directive of the European Parliament and of the Council Establishing a Framework for Maritime Spatial Planning and Integrated Coastal Management [2013] 0074 (COD) at 8 [EC, Proposal for a Directive]. For a discussion on ICZM and its recognition in international environmental law, see Ch. 6, Part 6.2. For more discussion on the partnership approach to sustainable development, see Ch. 4. Significantly, several out of the nearly 349 partnerships under the Commission for Sustain­able Development are relevant to coastal management and coastal environmental protection. For further information, see Partnerships for Sustain­able Development— CSD Partnerships Database, online: UN Division for Sustainable Development .

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implementation.24 An ICZM program designs the management of m ­ ultiple issues, on the basis of these principles. Biliana Cicin-Sain and Robert W. Knecht trace the principles to two primary sources. The first are those collectively identified in the Earth Summit documents, and the second emanate from key international agreements specifically related to the character of the coasts and oceans.25 Chua Thia-Eng locates four fundamental, 23 substantive, and seven procedural principles.26 Based on UNCED’s Agenda 21, the World Bank identifies the following primary ICZM principles: precaution, polluter pays, proper resource accounting, transboundary responsibility, and intergenerational equity.27 The European Union emphasizes the precautionary principle, interand intra-generational equity, adaptive management and reliance on sound science, respecting the carrying capacity of ecosystems, and wide stakeholder involvement.28 The Mediterranean ICZM protocol points to these: preventing damage to the coastal environment; formulation of land use strategies, plans and programs; utilizing ecosystems approach to coastal planning and management; the principle of spatial integration; respect for carrying capacity; preventing the negative effects of natural disasters and of development; transparency in the decision-making process; participation by stakeholders; and avoidance of urban sprawl.29

24

Robin Mahon, Lucia Fanning & Patrick McConney, “Principled Ocean Governance for the Wider Caribbean Region” in Lucia Fanning, Robin Mahon & Patrick McConney, eds., Towards Marine Ecosystem-based Management in the Wider Caribbean, MARE Publication Series No. 6 (Amsterdam: Amsterdam University Press, 2011) 27 at 30; Philippe Sands, “International Law in the Field of Sustainable Development: Emerging Legal Principles” in Winfried Lang, ed., Sustainable Development and International Law, International Environmental Law and Policy Series (London: Graham & Trotman/ Martinus NIjhoff, 1995) 53 at 54–55. 25 Biliana Cicin-Sain & Robert W. Knecht, Integrated Coastal and Ocean Management: Concepts and Practices (Washington, DC: Island Press, 1998) at 52; Biliana Cicin-Sain, “Sustainable Development and Integrated Coastal Management” (1993) 21 Ocean & Coast Mgmt 11 at 32–34 [Cicin-Sain, “Sustainable Development”]. 26 Thia-Eng, Dynamics of Integrated Coastal Management, supra note 1 at 90. 27 Jan C. Post & Carl G. Lundin, eds., Guidelines for Integrated Coastal Zone Management, Environmentally Sustainable Development Studies and Monographs Series No. 9 (Washington, DC: The World Bank, 1996) at 6. 28 EC, Recommendation of the European Parliament and of the Council of 30 May 2002 concerning the implementation of Integrated Coastal Zone Management in Europe, ­ (2002/413/EC) [2002] OJ L 148/24 at 25, ch. 2. 29 ICZM Protocol, supra note 17, art. 6.

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The 2006 publication, “A Handbook for Measuring the Progress and Outcomes of Integrated Coastal and Ocean Management,”30 identifies the environment and development principles, such as the right to develop; inter-­ generational equity; environmental assessments; precautionary approach; polluter-pays principle; and openness and transparency in decision-making as being central to this process.31 The Integrated Coastal Zone Management Action Plan for Guyana, 2000, presupposes the involvement of government at all levels, along with conservation of common property resources, planning and managing land and sea uses in combination, the importance of multi-use management and traditional management, and the need for environmental impact assessment (EIA).32 In its framing of ICZM, the Integrated Coastal Zone Management Action Plan for Kenya, 2010–2014, proposes the ecosystem-based approach, participatory and inclusive approaches, application of the precautionary and polluter pays principles, use of the best available science and adaptive management, promotion of stewardship, and balancing development and conservation objectives as essential guiding principles.33 Canada’s Ocean Strategy recognizes ecosystem-based management, sustainable development, precautionary approach, conservation, the duty and shared responsibility to support the sustainable development of marine resources, flexibility, and inclusiveness, as principles that must guide integrated management.34 To implement an ICZM program, states must apply these principles. However, they must develop and tailor them to local conditions, needs, concerns, and aspirations.35 The principles can be arranged in three tiers, two of which can be further divided, as in Figure 3.

30

Sherry Heileman, ed., A Handbook for Measuring the Progress and Outcomes of Integrated Coastal and Ocean Management. Intergovernmental Oceanographic Commission Manuals and Guides, 46, ICAM Dossier, 2 (Paris: UNESCO, 2006) (English). 31 Ibid. at 7. 32 Guyana, Environmental Protection Agency, Integrated Coastal Zone Management Action Plan (Guyana: EPA, 2000). 33 Ministry of Environment and Mineral Resources & NEMA, Integrated Coastal Zone Management (ICZM) Action Plan for Kenya, 2010–2014: Towards Integrated Management of Kenya’s Coastal and Marine Resources [nd] at 48–49. 34 Canada, Canada’s Oceans Strategy: Our Oceans, Our Future (Ottawa: Fisheries and Oceans Canada, 2002) at 9–10. 35 Sorensen, “National and International Efforts”, supra note 3 at 4.

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Linking Coastal Climate Change Adaptation Right to clean and healthy coastal environment

Substantive Principles

Polluter pays Precaution Inter- and intra-generational equity

Right to development and good coastal governance Management of common property resources Public trust (Increasing human capabilities and adaptive capacities )

Integration

Procedural Principles & Other Tools

Overarching Goal

Figure 3

EIAs MPAs Ecosystem based management Adaptive management

Transparency and accountability Subsidiarity and decentralization

SUSTAINABLE COASTAL DEVELOPMENT

A Principled Approach to ICZM

In the first layer, are the substantive principles, followed by the procedural principles and other tools.36 The first and second layers lead to the ­overarching goal of SCD in the third tier. All these principles and tools are inter-linked and complement each other to form the building blocks of the ICZM process. No one principle is superior to the other, and the sidelining of one can derail the march towards SCD.37 However, for greater clarity and purpose, certain principles can be prioritized over others, and some can be grouped together to create a specific hierarchy of norms. The most important feature of this matrix is that all the principles are linked together by the principle of integration or integrated management, which is the cornerstone of ICZM.38

36 37 38

Chua Thia-Eng identifies four fundamental, 23 substantive and seven procedural principles. Thia-Eng, Dynamics of Integrated Coastal Management, supra note 1 at 89. Ibid. at 89–90. Post & Lundin, eds., supra note 27 at 6.

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The axiomatic need for ICZM must be understood against the perceptions that call for its intervention. For a long time, natural resources governance, including coastal and ocean management, was based on the philosophy that resources were plentifully available and could support free use and universal exploitation. As well, it was believed that natural systems had an almost inexhaustible capacity to assimilate and cleanse the wastes that were produced. Since the technology for intensive resources exploitation had not been developed then, this philosophy seemed sensible, and justified the “single resource or single sector approach” to management.39 Accordingly, the different activities in the coastal landscape were considered in isolation, and sectoral regulatory regimes began to develop independently.40 Coastal governance fell to several government departments that operated largely on sectoral lines, each conferred with a limited range of responsibilities in a particular geographical area.41 However, as ocean uses began to multiply and the number of people depending on coastal and marine resources began to burgeon, it became evident that the sectoral approach was untenable and did not produce sustainable outcomes.42 By their very nature, single-sector silo management approaches neither has a comprehensive view of the characteristics of the coastal area, nor do they take into account the fact that actions initiated by one sector can deleteriously impact other sectors.43 In sum, it was clear that sectoral management could not ensure resources and environmental preservation in coastal zones. This failure called for an entirely new approach, which ultimately led to integration.44 39 40

41

42

43 44

Cicin-Sain et al., “Education and Training”, supra note 9 at 293. Matthew Heemskerk, “National Efforts at Integrated Coastal Zone Management: The Canadian, Australian and New Zealand Experiences”, Notes, (2001) 10 Dal J Leg Stud 158 at 163 (HeinOnline). For instance, in Mozambique different agencies are involved in coastal management. Their mandates are unclear, conflicting and overlapping. Mozambique, Ministry for Co-ordination of Environmental Affairs, Mozambique Initial National Communication under UN Framework Convention on Climate Change (Ministry for Co-ordination of Environmental Affairs, 2003) at 76–77. Cicin-Sain et al., “Education and Training”, supra note 9 at 293; see also Yoshifumi Tanaka, “Zonal and Integrated Management Approaches to Ocean Governance: Reflections on a Dual Approach in International Law of the Sea” (2005) 19:4 Int’l J Mar & Coast L 483 (HeinOnline). Thia-Eng, “Essential Elements”, supra note 3 at 81. Declaration of the United Nations Conference on the Human Environment, 16 June 1972, 11:6 ILM 1416 [Stockholm Declaration], prin 13; United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, 14 June 1992, 31:4 ILM 874

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Basically, integrated management demands integration of objectives and management-related efforts across different sectors, disciplines, agencies, and stakeholders to produce a holistic response to coastal zone utilization problems. There are five major dimensions to integration in ICZM: (1) intersectoral integration (involving integration among the agencies that manage different coastal and marine sectors, like fisheries, oil and gas development, ports and harbors); (2) intergovernmental integration (integration between the national, provincial and local levels of government); (3) spatial integration (integration between the land and ocean components of the coastal zone); (4) science-management integration (integration between different disciplines particularly management and science); and, (5) international integration (especially in cases such as transboundary resources exploitation and control of transboundary marine pollution).45 Despite this, integration does not completely preclude sectoral management. Certain issues are best handled when carried out on a sectoral basis, like those relating to fisheries, water pollution, marine protection, wetlands and mangrove conservation, and estuary protection.46 In recognizing this aspect, ICZM seeks to strengthen sectoral management regimes to ensure that they function under an overarching framework that views the coast as a system that links the different sectoral management regimes to produce consistent decisions and greater efficiency. By doing so, it fosters dialogue, cooperation and coordination between and among the various agencies and departments. As pointed out: [i]ntegration presupposes a multi-dimensional approach, a search for all the cogs in the wheel so that the management decision is ostensibly relevant, efficient, and hopefully equitable and effective in result. Integration has reinforced the problem-oriented approach, i.e., in the sense of an approach that looks at a problem with all its component issues, in context.47

45 46 47

[Rio Declaration], prin 4; Robinson, ed., supra note 5, ch. 17, ¶17.5(a). Integration is “the central defining concept” in ICZM. Jean Poitras, Robert Bowen & Jack Wiggin, “Challenges to the Use of Consensus Building in Integrated Coastal Management” (2003) 46 Ocean & Coast Mgmt 391 (ScienceDirect). Cicin-Sain et al., “Education and Training”, supra note 9 at 292. Cicin-Sain & Knecht, supra note 25 at 2. Aldo Chircop, “Teaching Integrated Coastal Management: Lessons from the Learning Arena” (2000) 43:4–5 Ocean & Coast Mgmt 343 at 352 (ScienceDirect).

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Multi-sectoral management can help ensure intelligent and sustainable use of the coast, by coordinating diverse actions to eliminate duplication of work, provide for optimal use of scarce resources, and ensure economies of scale.48 ICZM thus ensures that government departments and agencies that have jurisdiction over various aspects of the coastal zone coordinate their functions.49 In doing so, it steers towards SCD in an atmosphere that encourages ­optimal interaction among different players to produce rational cross-sectoral responses.50 This brings us now to the first tier of substantive principles essential to work the ICZM process. As Figure 3 reveals, there are two types of substantive principles: those that foster the right to a clean coastal environment, and those that promote the right to development.51 The procedural principles, which constitute the second layer, support the operation of the substantive ones. The substantive right to environmental protection (more precisely, the right to a healthy and clean coastal environment) is often treated as a human right. It was first articulated in the Stockholm Declaration at the Stockholm Conference in 1972.52 Subsequently, the Rio Declaration, the Declaration on Rights of Indigenous Peoples, the African Charter on Human and People’s Rights (the Banjul Charter),53 the Additional Protocol to the American Rights,54 and a host of other instruments also underscore the importance of the right to a clean and healthy environment.55 This right has widespread recognition at the international level, but its imprecision has cast doubt on its status as part of customary international law.56 Even so, some countries have it in their 48

For instance, see FAO, Code of Conduct for Responsible Fisheries (Rome: FAO, 1995) art. 10 (integration of fisheries into coastal area management). 49 Cicin-Sain, “Sustainable Development”, supra note 25 at 31. 50 While fishery managers will be concerned about fishery allocations and related issues, for an integrated coastal zone manager, the focus will be on the impacts of land based sources of marine pollution on fishing grounds, the impacts of unscientific fishing practices on coastal biodiversity, etc. Ibid. 51 Thia-Eng, Dynamics of Integrated Coastal Management, supra note 1 at 90. 52 Stockholm Declaration, supra note 44, prin 1. 53 “[A]ll peoples shall have the right to a general satisfactory environment favorable to their development.” See 27 June 1981, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (entered into force 21 October 1986), art. 24. 54 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights: Protocol of San Salvador, 17 November 1988, 28 ILM 161 (entered into force 16 November 1999) art. 11(1). 55 Rio Declaration, supra note 44, prin 1. 56 While certain authors conclude that it has emerged as a principle of customary inter­ national law, others state that it may still be on its way to emerge as customary interna­ tional law. Nickie Vlavianos, The Intersection of Human Rights Law and Environmental

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national constitutions.57 In others, national judiciaries have read it into their constitutional schemes, such as their Bill of Rights.58 Coastal communities may be able to rely on this right to further the overall objective of ­protecting their coastal environment.59 Indeed, it is in this regard, supported by the polluter pays, precautionary, and the inter- and intra-generational equity principles, the observance of all of which play vital roles toward securing a clean and healthy environment. The polluter pays principle decries failure to account for resource and environmental degradation in terms of product prices. And moreover, it is premised on the understanding that the state should not bear the costs involved in preventing or in carrying out remedial action, as this practically shifts the negative externality onto the taxpayer.60 Accordingly, polluter pays demands that the financial costs of preventing and remedying damage caused by pollution should lie with the undertaking that causes the pollution.61 The precautionary principle argues that given the limits of scientific knowledge and understanding of the impact of exploitation activities on resources and ecological systems within the limits of economic feasibility, restraint must be exercised to prevent untoward adverse impacts of these activities on the resilience and sustainability of resources and ecological systems. This principle involves anticipating and taking measures to avoid environmental harm or choosing the least environmentally harmful activity.62 In practice, the precautionary approach entails Law, Environmental Education for Judges and Court Practitioners (Calgary: Canadian Institute of Resources Law, 2012) at 3–4. 57 For instance, see Constitution of the Republic of South Africa, 1996, (S Afr), No. 108 of 1996, s. 24. 58 For more details, see Michael R. Anderson, “Individual Rights to Environmental Protection in India” in Alan E. Boyle & Michael R. Anderson, eds., Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996) 199 at 199–25. 59 See generally Tony George Puthucherril, “Operationalising Integrated Coastal Zone Management and Adapting to Sea Level Rise through Coastal Law: Where Does India Stand?” (2011) 26:4 Int’l J Mar & Coast L 569. 60 Ursula Kettlewellt, “The Answer To Global Pollution? A Critical Examination of the Problems and Potential of the Polluter-Pays Principle” (1992) 3 Colo J Int’l Envtl L & Pol’y 429 at 431 (HeinOnline); see also Boris N. Mamlyuk, “Analyzing the Polluter Pays Principle through Law and Economics” (2009) 18 Se Envtl LJ 39 at 45 (QL). 61 Ibid. 62 David Freestone, “The Precautionary Principle” in Robin Churchill & David Freestone, eds., International Law and Global Climate Change, International Environmental Law & Policy Series (London: Graham & Trotman/Martinus Nijhoff, 1991) 21 at 31–32; Caroline E. Foster, Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality, Cambridge Studies in International

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that in cases where there are threats of serious or irreversible damage; lack of full scientific knowledge and certainty should not be used to postpone appropriate measures to prevent environmental harm.63 While the principle of intra-generational equity seeks justice in access to resources and sustainable ecosystems within and among present societies, inter-generationally, the argument is for sustainable resources and their supporting ecosystems to be passed on to future generations. Given the socio-­ economic disparities and asymmetries in power that exist between social groups, communities and even nations, intra-generational equity, is perhaps one of the most difficult to realize.64 This principle emphasizes that the objective of the economic growth process is to foster inclusive and broad-based economic growth targeting marginalized and poverty-ridden sections.65 In other words, the strategy is to amalgamate equity with growth. As far as inter-­ generational equity is concerned, it is rooted in the idea of a compact between the present and future generations, wherein the present generation is bound by a “fiduciary duty” based on “planetary trust” to pass on the environment and natural resources which they inherited from previous generations in a manner that is no worse off than what they received.66 In bequeathing the environment and its resources to future generations, the principle implies that there should not be any compromise on its nature and quality that would impair their ability to utilize them.67

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and Comparative Law No. 79 (Cambridge: Cambridge University Press, 2011) at 10–12; Charmian Barton, “The Status of the Precautionary Principle in Australia: Its Emergence in Legislation and as a Common Law Doctrine” (1998) 22 Harv Envtl L Rev 509 at 512 (HeinOnline). Rio Declaration, supra note 44, prin 15. GF Maggio, “Inter/intra-generational Equity: Current Applications under International Law for Promoting the Sustainable Development of Natural Resources” (1997) 4 Buff Envtl L J 161 at 163–4 (QL). There are several international environmental law instruments that deal with intra-generational equity. The intra-generational dimension of equity has received scant attention at judicial hands at the international level. But see Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ Rep 213 at 266, ¶144 [Costa Rica v. Nicaragua] (calling upon Nicaragua to respect fishing by the inhabitants of the Costa Rican bank of the San Juan River for subsistence purposes as a customary right). Costa Rica v. Nicaragua, ibid., ¶58(d). Edith Brown Weiss, “The Planetary Trust: Conservation and Intergenerational Equity” (1983) 11 Ecology LQ 495 at 499 (HeinOnline). Ibid. at 505.

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This now brings us to the procedural principles that work the substantive ones. The first of these is ecosystem-based management, which has been defined as “structuring societal behavior in ocean and coastal systems [to] promote ecosystem health and resilience while allowing sustainable uses of goods and services.”68 This management paradigm has widespread recognition and application in resource management sectors like “forest management”69 and “responsible fisheries” approaches.70 It treats the ecosystem as the primary unit for management,71 and replaces traditional modes of natural resources management that are organized around particular uses and resources, and which fail to address the interdependence and interactions among humans, animal and plant communities and their physical environments.72 The Rio Declaration endorses it as a process by which “to conserve, protect and restore the health and integrity of the Earth’s ecosystem.”73 In Chapter 17 of Agenda 21, it is acknowledged to require, for its realization, techniques that are “integrated in content and are precautionary and anticipatory in ambit . . .”74 Various Conferences of Parties to the Convention on Biological Diversity, 1992, (CBD) have identified 12 principles to operationalize the ecosystem approach, which are central to work the ICZM process as well.75 68

Richard Burroughs, Coastal Governance (Washington, DC: Island Press, 2011) at 223; see also Robert Kay & Jacqueline Alder, Coastal Planning and Management, 2d ed. (Oxon: Taylor & Francis, 2005) at 63. 69 UNGA, Report of the United Nations Conference On Environment and Development (Rio De Janeiro, 3–14 June 1992) Annex III Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, A/CONF.151/26 (Vol. III), 14 August 1992, online: United Nations Documents . 70 The 1995 Code of Conduct for Responsible Fisheries contains many principles that are based on an ecosystem approach. In 2003, the Food and Agricultural Organization brought out the “Fisheries management: the ecosystem approach to fisheries” to support the implementation of an ecosystem based approach to the Code of Conduct for Responsible Fisheries. FAO, Fisheries Management: 2. The Ecosystem Approach to Fisheries, FAO Technical Guidelines for Responsible Fisheries 4, Suppl 2 (Rome: FAO, 2003). 71 Ibid. 72 Stephen Boyle Olsen, “A Practitioner’s Perspective on Coastal Ecosystem Governance” in Erlend Moksness, Einar Dahl & Josianne Støttrup, eds., Integrated Coastal Zone Management (Oxford: Wiley-Blackwell, 2009) 253 at 257. 73 Rio Declaration, supra note 44, prin 7. 74 Robinson, ed., supra note 5, ch. 17, ¶17.1. 75 AIDEnvironment, National Institute for Coastal and Marine Management/Rijksinstituut voor Kust en Zee (RIKZ), Coastal Zone Management Centre, Integrated Marine and Coastal Area Management (IMCAM) Approaches for Implementing the Convention on Biological

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Due to the complex and highly dynamic nature of coastal ecosystems which are inadequately understood by science, ICZM programs have to be embedded in adaptive management, which is essentially a process of learningby-doing.76 In its simplest form, it is expressed as continuing cycles of action and reflection. At the fundamental level, it involves the use of “reversible management interventions, careful monitoring of impacts, and continual assessment and refinement of management practice as information increases.”77 Often treated as supportive to the precautionary approach,78 it effectively helps to address issues of uncertainty79 and is recognized in several international environmental law instruments.80

Diversity, CBD Technical Series No. 14 (Montreal: Secretariat of the CBD, 2004). Decision V/6 identifies 12 complementary and inter-linked principles and others as operational guidance to reflect upon the common level of understanding of the ecosystem approach. For the text of the COP 5 Decision V/6: Ecosystem Approach, see Annex III: Decisions Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Fifth Meeting, Nairobi, 15–26 May 2000, UNEP/CBD/COP/5/23, 66 at 103. For the text of the Decision VI/12, see Annex I: Decisions Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Sixth Meeting The Hague, 7–19 April 2002, UNEP/ CBD/COP/6/20, 70 at 180. It recognizes “the necessity to apply the ecosystem approach in national policies and legislation” and emphasizes the need to develop regional guidelines for its application. Ibid.; UNEP & CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Seventh Meeting VII/11. Ecosystem Approach, UNEP/CBD/COP/DEC/VII/11, 13 April 2004, online: Convention on Biological Diversity ; UNEP & CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Ninth Meeting IX/7. Ecosystem Approach, UNEP/CBD/COP/DEC/IX/7, 9 October 2008, online: Convention on Biological Diversity at 1. 76 Stephen Olsen, James Tobey & Meg Kerr, “A Common Framework for Learning from ICM Experience” (1997) 37:2 Ocean & Coast Mgmt 155 at 158 (ScienceDirect); see also Kay & Alder, supra note 68 at 65. 77 Minna Pyhälä, Anne Christine Brusendorff & Hanna Paulomäki, “The Precautionary Principle” in Malgosia Fitzmaurice, David M. Ong & Panos Makouris, eds., Research Handbook on International Environmental Law (Glos: Edward Elgar Publishing Ltd, 2010) 203 at 220. 78 Ibid. 79 Ibid. 80 For instance, see UNGA, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, A/CONF 164/37, 8 September 1995, 34 ILM 1542 (entered into force 11 December 2001), art. 6(3).

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Another important procedural principle that works to balance environmental and developmental considerations is the environment impact assessment. This is a process that draws together expert qualitative assessment regarding a project’s predicted environmental and societal consequences in scientific form and outlines measures for modifying or mitigating them. The ex-ante ­consideration of these relevant factors is also based on public hearings, where inputs are obtained from various actors, such as those directly affected by the project, environmental NGOs, and experts. Before taking the final decision, the decision-making body must properly evaluate all of these opinions.81 Several international environmental law treaties emphasize the need for EIAs82 and given the economic potential of coastlines, EIA becomes an important instrument for ensuring that development proceeds in an orderly manner without jeopardizing the resilience of natural ecosystems. As coastal waters and their surrounding environs harbor habitats that are rich in biodiversity, protecting and conserving these areas is essential. Constitution of marine protected areas (MPAs)83 is an important tool that helps to preserve the resilience of ecosystems and reduce the vulnerability of 81

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Neil Craik, The International Law of Environmental Impact Assessment Process, Substance and Integration (Cambridge: Cambridge University Press, 2008) at 4; Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 30 ILM 802 (entered into force 10 September 1997) [Espoo Convention]. Prominent examples include the United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397, 21 ILM 1261 (entered into force 16 November 1994) [LOSC], arts. 204–206; UNFCCC United Nations Conference on Environment and Development: Framework Convention on Climate Change, 19 June 1993, 31 ILM 849 (adopted at New York 9 May 1992) [UNFCCC], art. 4(1); CBD United Nations Conference on Environment and Development: Convention on Biological Diversity, 1993, 5 June 1992, 31 ILM 818 (entered into force 29 December 1993), art. 14; Convention on Biological Diversity, online: CBD Home ; the United Nations Convention on the Law of the NonNavigational Uses of International Watercourses UN: Convention on the Law of the Non-navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700, art. 12; and the Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 30 ILM 802 (entered into force 10 September 1997) [Espoo Convention]. National laws and judicial opinions have also outlined the importance of carrying out EIAs. For instance, see Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), [2010] ICJ Rep 14, ¶204. See UNEP & CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Seventh Meeting: VII/5: Marine and Coastal Biological Diversity, UNEP/CBD/COP/DEC/VII/5, 13 April 2004, at 2; Decision 1/CP.10: Buenos Aires Programme of Work on Adaptation and Response Measures, FCCC/CP/2004/10/Add.1, 17–18 December 2004, ¶¶5–14, online: UNFCCC .

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biodiversity and ecosystem services in light of SLR, climate change impacts, and other anthropogenic activities.84 There are several legal instruments at the international level that encourage MPA creation and management.85 Two notable trends in operationalizing MPAs are the network approach and the linking of MPA management to an ICZM process. In giving effect to the traditional saying that “the whole is greater than the sum of the parts,” in a marine environment protection context, an ecological network of MPAs seeks to connect individual pieces of the larger ecosystem either ecologically or functionally, but not necessarily physically, so as to achieve a set of broader network

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Kristina M. Gjerde & Anna Rulska-Domino, “Marine Protected Areas beyond National Jurisdiction: Some Practical Perspectives for Moving Ahead” (2012) 27 Int’l J Mar & Coast L 351 at 354 (HeinOnline). Specifically, article 194(5) of the LOSC calls on states to adopt measures “to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” This provision can be interpreted as conferring powers on states for MPA creation. Agenda 21 of the Rio Conference also articulates the importance of constituting MPAs. Robinson, ed., supra note 5, ch. 15, ¶15.5(g). Chapter 17 emerges as the “international basis upon which to pursue the protection and sustainable development of the marine and coastal environment and its resources”. See ibid., ¶¶17.1, 17.5, 17.6(h) & 17.7. Even more pertinent to the issue is the CBD, which provides for the establishment of “protected areas or areas where special measures need to be undertaken to conserve biological diversity.” CBD, supra note 82, art. 2, art. 8(a). In addition, the Ramsar Convention, the Convention on the Conservation of Migratory Species of Wild Animals See Convention on the Conservation of Migratory Species of Wild Animals (Bonn), 23 June 1979,19 ILM 15 (entered into force 1 November 1983) art. 2; the International Convention for the Prevention of Pollution from Ships (MARPOL) See International Convention for the Prevention of Pollution from Ships, 2 November 1973, 1340 UNTS 184, 12 ILM 1319 as modified by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, 1340 UNTS 61, 17 ILM 546 (entered into force 2 October 1983) annexes I, II & V; see also IMO, Guidelines for the Designation of Special Areas under Marpol 73/78, IMO Doc A 22/Res 927 (IMO, 15 January 2002), and the Convention Concerning the Protection of the World Cultural and Natural Heritage Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151, 11 ILM 1358 (entered into force 17 December 1975). A number of MPAs are world heritage sites, including the Great Barrier Reef in Australia, the Galapagos Islands in Ecuador, the Sundarbans in India and in Bangladesh. UNESCO & WHC, World Heritage Marine Programme, online: UNESCO World Heritage Convention also fortifies MPA creation.

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objectives.86 In doing so, greater resilience is built to deal with external threats; particularly, those relating to climate change, thereby providing for more sustainable coastal and marine environment management. Despite the call from the World Summit on Sustainable Development, 2002, for the “establishment of marine protected areas consistent with international law and based on ­scientific information, including representative networks by 2012,” progress has been dismal.87 The rationale for linking MPAs with ICZM is based on the fact that MPAs are greatly affected by the spillover effects of human activities that take place well beyond the physical boundaries that demarcate an MPA. Moreover, “these exogenous activities often have greater impact on the resources of the MPA than those carried out within the protected area.”88 Consequently, there is an increasing tendency to work an MPA management scheme within an ICZM process.89 This latter endeavor is no easy feat, since the management mechanisms for both sets of tasks may be vastly different. Nevertheless, creating linkages is an important step towards SCD. The foregoing procedural tools are supported by many others to foster progress toward attaining a clean and healthy environment. These include the use of best science,90 land use planning and zoning,91 and full cost allocation.92 The second prong of SCD is the right to develop. Though traces of this right can be seen in numerous international instruments,93 its precise connotations

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See generally Gov’t of Canada, Fisheries and Oceans Canada, National Framework for Canada’s Network of Marine Protected Areas (Ottawa: Fisheries and Oceans Canada, 2011). 87 IUCN, Establishing Marine Protected Area Networks: Making it Happen, A Guide for Developing National and Regional Capacity for Building MPA Networks: Non-Technical Summary Report (WCPA/IUCN, 2007). 88 Thia-Eng, Dynamics of Integrated Coastal Management, supra note 1 at 252. 89 Biliana Cicin-Sain & Stefano Belfiore, “Linking Marine Protected Areas to Integrated Coastal and Ocean Management: A Review of Theory and Practice” (2005) 48 Ocean & Coast Mgmt 847 (ScienceDirect). 90 Mahon, Fanning & McConney, supra note 24 at 36. 91 For instance, see ICZM Protocol, supra note 17, art. 20. 92 Mahon, Fanning & McConney, supra note 24 at 35. 93 For further details, see the Charter of United Nations, 1945, the International Bill of Human Rights, the Declaration on the Right to Development, 1986, the Rio Declaration, the Vienna Declaration on Human Rights, the Copenhagen Declaration on Social Development, 1995, the Beijing Declaration and Platform for Action, 1995 and the African Charter on Human and People’s Rights, 1981.

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remain controversial.94 As noted earlier, one primary reason for this imprecision is the changing conception of “development,” which is now understood as enhancement of human capabilities.95 An essential condition to enhancing human development is that environmental pollution and degradation should be addressed, in particular, as they relate to the poor.96 In fact, poverty contributes significantly to environmental degradation. India’s former Prime Minister, Indira Gandhi, declared at the Stockholm Conference in 1972 that “poverty is the biggest polluter.”97 It exacerbates environmental degradation, which in turn contributes to poverty, creating a vicious cycle.98 Thus, for development to be sustainable, it is essential that poverty alleviation becomes focal to the discourse on coastal development. A basic requirement for alleviating poverty is security of access to coastal resources. In most developing nations, particularly, in coastal South Asia, coastal resources are treated as part of common property regimes over which community members have usufructuary rights.99 Since many coastal communities depend on fishing for their dietary, livelihood, and leisure requirements, the right of public access to beaches and other coastal areas is critical. However, due to increasing demands on coastal space for developmental activities, the importance of this right is often overlooked and coastal communities are fast losing physical and visual access to coastal zones they previously enjoyed, affecting both their right to livelihood and their well-being.100 94

But see Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, 276 / 2003, online: Human Rights Watch [Centre for Minority Rights Development (Kenya)](holding that the state bears the burden for creating conditions favorable to people’s development and that the Endorois should not be left out of the development process). 95 For more on this topic, see Ch. 4, Part 4.2.1. 96 Centre for Minority Rights Development (Kenya), supra note 94. 97 Akash Kapur, “Letter from India: Pollution as Another Form of Poverty”, The New York Times (8 October 2009) online: . 98 Rajendra Ramlogan, Sustainable Development: Towards a Judicial Interpretation, David Freestone, ed., 9 Legal Aspects of Sustainable Development (The Netherlands: Martinus Nijhoff, 2011) at 14. 99 See Daniel W. Bromley & Michael M. Cernea, The Management of Common Property Natural Resources: Some Conceptual and Operational Fallacies (Washington, DC: World Bank Publications, 1989) at 16. 100 But see Fomento Resorts & Hotels v Minguel Martins (2009) CA No. 4154 of 2000 (India) ¶¶36, 40–41, online: Indian Kanoon . Relying on the doctrine of public trust, it was held that Fomento Resorts and Hotels was under a statutory obligation to maintain access to the beach without obstruction of any kind. Ibid.

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In seeking to alleviate poverty, it may be useful to resort to the ancient Roman law doctrine of public trust, which is based on the idea that certain common properties are held by the state in trusteeship for the free and unimpeded use of the general public.101 This doctrine passed into the English ­common law to authorize a sovereign to own these resources but in a limited way, in that the Crown could not grant these properties to private owners if doing so interfered with public interests in navigation or fishing.102 These restrictions did not, however, hinder the government to utilize its police power to enlarge or diminish public rights for a legitimate public purpose.103 Public trust found fertile legal ground in the United States where, in addition to state legislatures, state courts have gone to great lengths to expand and entrench it.104 It is also recognized in several other national legal systems,105 and national courts have often relied on it to ensure that the state performs its trustee functions in good faith.106 The doctrine is, however, much less recognized at the international level. Basically, the doctrine of public trust rests on the assumption that certain resources like air, sea, waters, the coasts, and the forests have great importance to the people as a whole and that it is unjustified to convert them into private ownership. Its implication is that to benefit the people at large, the government holds these resources in trust, to be made freely available to all, i­ rrespective of

101 See Inst Divi Justiniani D.1.T.8. C.xIi.T.1. §1 (Thomas Cooper ed., translated by George Harris, 1812). See also Douglas M. Johnston & David L. VanderZwaag, “The Ocean and International Environmental Law: Swimming, Sinking, and Treading Water at the Millennium” (2000) 43 Ocean & Coast Mgmt 141 at 142 (ScienceDirect). 102 Paul A. Barresi, “Mobilizing the Public Trust Doctrine in Support of Publicly Owned Forests as Carbon Dioxide Sinks in India and the United States” (2012) 23 Colo J Int’l Envtl L & Pol’y 39 at 48 (HeinOnline). 103 Joseph L. Sax, “Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” (1970) 68 Mich L Rev 471 at 476 (HeinOnline). 104 Illinois Central Railroad Co v People of the State of Illinois, 146 US 387 (1892); National Audubon Society v Superior Court of Alpine County, 33 Cal 3d 419. 105 For instance, see National Environmental Management: Integrated Coastal Management Act, (S Afr), No. 24 of 2008, s 12 (state is the public trustee of all coastal property). 106 For an understanding of how the public trust doctrine is applied in 12 different countries as a doctrine of ecological protection incorporating the principles of precaution, sustainable development, and intergenerational equity, see Michael C. Blumm & Rachel D. Guthrie, “Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision” (2012) 45 UC Davis L Rev 741 at 760–807 (HeinOnline).

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“their economic status or circumstance.”107 The doctrine enjoins the government to protect the resources for public enjoyment rather than permit their use for private ownership or for commercial purposes.108 In recent years, there has been a growing interest in the untapped potential of this doctrine as an important tool for coastal resource management. Specifically, it is thought that it can play significant roles in poverty alleviation by securing community rights over common property resources.109 An effective way of managing the coastal zone is by strengthening good coastal governance, which lies at the heart of SCD.110 Good coastal governance is “the process in which public, private and civil society actors organize themselves and coordinate with each other to make decisions and distribute rights, obligations and authority for the use of shared coastal resources.”111 It commits states to transparent decision-making procedures, ensures accessibility to information, promotes due process and respect for the rule of law, protects human rights, and secures participatory decision-making, strengthens empowerment, representativeness, inclusivity, comprehensiveness, decentralization, cooperation and greater accountability.112 107 James M. Olson, “Navigating the Great Lakes Compact: Water, Public Trust, and Inter­ national Trade Agreements” [2006] MS L Rev 1103 at 1113 (HeinOnline). 108 Sax, supra note 103 at 473; see also Blumm & Guthrie, supra note 106. 109 Ralph W. Johnson et al., “The Public Trust Doctrine and Coastal Zone Management in Washington State” (1992) 67 Wash L Rev 521 (QL). 110 Kofi Annan former UN Secretary-General notes, “[g]ood governance is perhaps the single most important factor in eradicating poverty and promoting development.” UNDP, Human Development Report 2002: Deepening Democracy in a Fragmented World (New York: UNDP, 2002) at 51. In the context of sustainable development, good governance means respecting the Rio Principles. Kamal Hossain, “Evolving Principles of Sustainable Development and Good Governance” in Konard Ginther, Erik Denters & Paul JIM de Waart, eds., Sustainable Development and Good Governance (Netherlands: Martinus Nijhoff, 1995) 15 at 21. 111 USAID & University of Rhode Island Coastal Resources Center, A World of Learning in Coastal Management: A Portfolio of Coastal Resources Management Program Experience and Products (Rhode Island: Coastal Resources Center, 2002) at 3. 112 Mahon, Fanning & McConney, supra note 24 at 31; see also ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development, Resolution 3/2002 adopted at the 70th Conference of the International Law Association (New Delhi 2–6 April 2002), UN Doc A/CONF.199/8, (9 August 2002), prin 6. See Gunaratne v The Homagama Pradeshiya Sabha (3 April 1998), App No. 210/97(FR) of 4 March 1998 (Sri Lanka SC) (Amerasinghe, J holding that “Publicity, transparency and fairness are essential if the goal of sustainable development is to be achieved”).

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Under traditional modes of coastal governance, management is often constrained by fiat issued by external forces with little or no stakeholder consultation and participation.113 ICZM seeks to rectify this asymmetry by providing a platform to secure meaningful public participation and consultation in all stages of decision-making.114 The involvement of coastal communities in a program that affects their lives and livelihoods via co-management and greater participation is a sine qua non that enhances its legitimacy and contributes significantly to its long-term success and sustainability.115 Moreover, by empowering local coastal communities that have the greatest stake in maintaining the health of coastal areas and resources, ICZM helps to build human and institutional capacity at all levels. Another aspect of the traditional CZM prototype is that the initiative is based on a top-down, centralized, and bureaucratically heavy approach. Often, the bureaucracy is found to be too slow, fraught with red tape, and unable to efficiently manage the resource.116 In line with the need for better coastal governance, ICZM seeks to provide for greater and more effective coordination between the different sectors across multiple scales, in line with the principle of decentralized decision-making and subsidiarity, ensuring compatibility between the national and local levels of government. In effect, ICZM facilitates decentralized multi-stakeholder, consensus-based decision-making by providing a framework and a process for realizing grass-roots level democracy in coastal zones.117 113 J. Areizaga et al., “Improving Public Engagement in ICZM: A Practical Approach” (2012) 109 J Envtl Mgmt 123 at 123 (ScienceDirect). Under authoritarian regimes, ICZM is an oxymoron as its basic principles namely, integration, reform and genuine participation, are absent in the overall governance arrangements. Laura Tabet & Lucia Fanning, “Integrated Coastal Zone Management under Authoritarian Rule: An Evaluation Framework of Coastal Governance in Egypt” (2012) 61 Ocean & Coast Mgmt 1 at 2 (ScienceDirect). 114 EC, Alan Pickaver et al., eds., Our Coast: ICZM in Europe, Integrated Coastal Zone Management Participation Practices in Europe (Luxembourg: Publications Office of the EU, 2010) at 10. 115 Ibid. 116 Sanju Panda (Advocate) v Orissa, (2002) [2002] 2 OLR 189 (Orissa HC) (highlighting the blatant violation of the coastal law). 117 See generally Jason M. Patlis, Maurice Knight & Jeff Benoit, “Integrated Coastal Management in Developing, Decentralizing Countries: The General Paradigm, the U.S. Model and the Indonesian Example” in Elisabeth Mann Borgese, Aldo Chircop & Moira McConnell, eds., Ocean Yearbook, vol. 17 (Chicago: University of Chicago Press, 2003) 380 (forwarding a voluntary, incentive-based program for decentralization).

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In sum, ICZM coalesces around a cluster of fundamental sustainability principles that must work together to move coastal management towards the ultimate goal of SCD. The principles identified above as relevant to an ICZM process are not exhaustive, and their observation cannot be strictly compartmentalized. In its most primary and essential form, an ICZM program consists of five phases. The first is program initiation, which involves the identification and analysis of critical issues that affect the coastal environments, and sets the demand for an ICZM program.118 The second phase is program preparation, which involves the development of the objectives and the preparation of the plan, policies and actions.119 Phase three relates to formalization and adoption of the program, which can be via a law, a decree or an interagency agreement. It also includes the securing of funds.120 Implementation forms the focus in phase four, and phase five is dedicated to a formal evaluation.121 However, the five-step program does not always proceed in a linear sequence. At times, certain phases may have to be addressed before others.122 Indeed, for the program to work without compromising its effectiveness, it may be necessary to revisit stages and make appropriate changes to ensure compliance with the identified requirements at appropriate stages.123 Typically, an ICZM program matures through the successive completion of management cycles, which is a time-consuming process. An initial cycle contemplated at the national scale may take somewhere between eight to 15 years, while a demonstration project that is targeted at a single bay or an urban area will take half this time.124 Each of these cycles is called a “generation” of an ICZM project or program. Typically, the first cycle deals with a few urgent issues that are restricted to a specific geographic area. Subsequently, through adaptive learning, the geographic dimensions may expand to include new and more complex elements.125 118 Olsen, Tobey & Kerr, supra note 76 at 155; Heileman, ed., supra note 30 at 9; see Stephen B. Olsen, Kem Lowry & James Tobey, The Common Methodology for Learning: A Manual for Assessing Progress in Coastal Management, Coastal Management Report #2211 (Narragansett, USA: Coastal Resources Center, 1999) at 15 [Olsen, Lowry & Tobey, The Common Methodology]. 119 Olsen, Tobey & Kerr, ibid. at 160. Heileman, ed., ibid. at 9; see Olsen, Lowry & Tobey, The Common Methodology, ibid. at 23. 120 Olsen, Lowry & Tobey, ibid. at 8. 121 Olsen, Tobey & Kerr, supra note 76 at 160. 122 Olsen, Lowry & Tobey, The Common Methodology, supra note 118 at 8. 123 Ibid. 124 Ibid. 125 Ibid.

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ICZM is a process that helps to secure the more efficient use of coastal resources for economic development, reconciling short-term economic interests with long-term environmental concerns. However, an ICZM process may involve several dimensions, making it highly specialized and difficult to grasp, let alone implement. Specificity and intricacy require that coastal countries have sufficient capacity to develop an ICZM program based on sustainability principles, tailoring them to their unique contexts. Unfortunately, this is rarely the case, particularly in developing countries, which often find themselves hamstrung by capacity and institutional constraints.126 As alluded to earlier, a major reason for this situation is the absence of an international overarching treaty on this subject and an international agency to oversee and support national ICZM implementation. The much-needed consistency and guidance could have been achieved had there been an international treaty and an international body to consolidate and standardize the various practice rules.127 5.4 ICZM: A Balancing Act As laudable as it appears, ICZM cannot be considered as the ultimate solution to the coastal management quagmire. As Jens Sorensen points out, [i]ntegrated coastal management is now practiced all over the globe and it is part of the rhetoric for sustainable development. For many who have been following the ICM star for decades, the optimism is now guarded because they have found out that ICM is a long swim against the current.128 Another commentator states: [t]he continued iteration of an integrated approach as a ‘general good’ is infrequently challenged. Indeed, any such challenge might be considered to be heretical. However, such an uncritical approach may lull us into

126 See generally Maria Snoussia & El Hafid Tabet Aoul, “Integrated Coastal Zone Management Programme Northwest African Region Case” (2000) 43 Ocean & Coast Mgmt 1033 (ScienceDirect). 127 For a discussion on the role of international environmental law in facilitating ICZM, see Ch. 6, Part 6.2. 128 Sorensen, “National and International Efforts”, supra note 3 at 3.

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a false security that integration provides a panacea for our ill-managed oceans. This is simply not true.129 The AR5 of the IPCC identifies many of the reasons for the subdued confidence in the efficacy of ICZM. It writes: [e]ven though ICZM has been applied throughout the world for over 40 years, many obstacles to its successful implementation still remain . . . A recent review of ICZM in Europe concluded that the complexity of coastal regulations, demographic deficits, lack of sustainable finance and a failure to involve communities, business and industry hinder its implementation. Developing countries in particular struggle to meet the goals of ICZM due to a lack of qualified human resources, a lack of human, legal and institutional capacities; difficulties in integrating policy across multiple coastal agencies; power (abuse) of the majority political party or political leaders, the lack of long-term financial commitment of donors, and a lack of knowledge regarding the coastal system.130 Probably at the base of the difficulties associated with the potential of ICZM is its nebulous character, which, like its objective (sustainable development), “makes it difficult to nail down precisely.”131 Certainly, a major allure of ICZM is that there are no right or wrong approaches. As such, each country has substantial freedom to design an ICZM program that reflects best, its needs and interests.132 Accordingly, some countries seek rehabilitation of beleaguered coastal environments, while others focus on terrestrial sources of marine pollution.133 Apart from this malleability due to contextual variations, an ICZM program can also be delivered in a wide variety of ways. However, the advantages held out by its protean nature can also turn into an Achilles heel.

129 Richard A Barnes, “Some Cautions about Integrated Oceans and Coastal Management” (2006) 8 Envtl L Rev 247 at 247–48 (HeinOnline). 130 Fifth Assessment Report, supra note 18 at 33. 131 Chircop, supra note 47 at 345. 132 Selina M. Stead & Derek J. McGlashan, “A Coastal and Marine National Park for Scotland in Partnership with Integrated Coastal Zone Management” (2006) 49 Ocean & Coast Mgmt 22 at 38 (ScienceDirect). 133 See Cape Verde, Ministry of Environment and Agriculture, National Meteorology and Geophysics Institute & UNFCCC, National Adaptation Programme of Action on Climate Change 2008–2012 (Executive Version, December 2007) at iii.

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ICZM remains vaguely defined at the operational level of management. As referred to earlier, there are five dimensions to ICZM integration, and putting these into practice is not easy.134 As Biliana Cicin-Sain states [b]ringing together and harmonizing the perspectives of divergent sectoral government agencies, of different levels of government (each with their own interests, mandates, and perspectives), and of different ­disciplines (each with different outlooks, language, and methodologies) represents a most challenging set of tasks.135 A major critique is that, in most coastal countries, particularly those in the developing world, ICZM programs are constrained by the lack of sustained political support, finance and capacity.136 Systemic failures, the lack of ­adequately trained personnel, corruption, institutional obstacles,137 and a nation’s political instability and lack of public awareness are other factors that can derail an ICZM program. Complicating matters further are constitutional constraints. For instance, if the constitution does not provide an atmosphere to operationalize decentralized management or to carry out spatial integration, it may hamper the implementation of ICZM.138 Notwithstanding these drawbacks, ICZM programs can improve the quality of life of coastal communities.139 Rather than replace sectoral responsibilities, these programs can link up and coordinate actions among different sectors, and also fill-in gaps to ensure that decision-makers do not work at cross-purposes. By envisaging wide stakeholder participation, decentralized decision-making, and decision-making based on sound science and management practices, ICZM smoothes out the process by clarifying and providing 134 Cicin-Sain et al., “Education and Training”, supra note 9 at 292. 135 Ibid. 136 See generally Brian R. Crawford, J. Stanley Cobb & Abigail Friedman, “Building Capacity for Integrated Coastal Management in Developing Countries” (1993) 21 Ocean & Coast Mgmt 311 at 337. 137 See Robin McCall & Talia Choy, “Integrated Coastal Zone Management (ICZM) in Guyana: Development Barriers, Opportunities and Recommendations” in Erlend Moksness, Einar Dahl & Josianne Støttrup, eds., Integrated Coastal Zone Management (Oxford: Wiley-Blackwell, 2009) 219 at 229–33 (outlining some of the major barriers in the implementation of ICZM in Guyana). 138 In this context, it must be noted that the success of ICZM programs will depend greatly upon the constitutional framework of a country. 139 Chua Thia-Eng, Danilo Bonga & Nancy Bermas-Atrigenio, “Dynamics of Integrated Coastal Management: PEMSEA’s Experience” (2006) 34 Coastal Mgmt 303 at 304.

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guidance on resource use and allocation. Additionally, ICZM empowers local communities and provides them with increased access and decision-making powers over resources management. By doing so, it provides an opportunity to coastal stakeholders to help them attain their developmental aspirations by maximizing benefits from current and future development through careful and rational planning. It helps to balance competing demands over land and natural resources, resolves potential conflicts among users, promotes development in areas away from sensitive locations, and mitigates the impacts of existing activities harmful to the environment. More importantly, it helps to augment the adaptive capacities of coastal communities, and places them in a better position to adjust to climatic impacts. Thus, despite weaknesses, ICZM emerges as the master plan for SCD, and the growing international recognition of this concept is a testament to this fact. In the next section, we examine the relevance of climate change adaptation to the proper management of coastal and marine environments. 5.5

Climate Change Adaptation for Coastal and Marine Environments

Prior to the advent of global warming, natural climatic variations were limited in space and time, and therefore humans could easily and successfully adapt.140 But now, with the shorter time scales at which climatic variations are taking place, adaptation has become a daunting task. Complicating the situation is the expansion of human settlements into high hazard zones, placing entire communities at greater risk.141 As well, the abuse of natural systems due to anthropogenic activities is so extreme that many critical thresholds have been crossed, making these systems less resilient to climate variability and change. In addition, adaptation must be considered against the backdrop of a complex set of social, economic and political variables.142 For instance, 140 E. Lisa F. Schipper & Ian Burton, “Understanding Adaptation: Origins, Practice and Policy” in E. Lisa F. Schipper & Ian Burton, eds., The Earthscan Reader on Adaptation to Climate Change (London: Earthscan, 2009) 2 [Schipper & Burton, “Understanding Adaptation”]. 141 Ibid. 142 W. Neil Adger, Shardul Agrawala & M. Monirul Qader Mirza, “Assessment of Adaptation Practices, Options, Constraints and Capacity” in M.L. Parry et al., eds., Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 717 at 728.

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most developing countries are reluctant to broach the subject of long-term adaptation, mainly because it is simply not on their priority list. They have more pressing problems, like poverty reduction and limited amounts of capital and other resources to meet the fiscal demands of adaptation.143 The “long time horizon and inherent uncertainty” associated with climate change also makes it an unimpressive candidate for investment.144 In short, successfully responding to anthropogenic climate change has emerged as a gargantuan challenge.145 Essentially, adaptation to climate change refers to initiatives and measures that seek to reduce vulnerability or moderate harm to natural and human systems against actual or expected climate change effects or the exploitation of beneficial opportunities where present.146 There are different kinds of adaptation measures and classifications. In cases where measures are initiated prior to the observation of impacts, adaptation is anticipatory.147 When adaptation measures are designed post-occurrence, they are reactive.148 Where adaptation is the result of deliberate policy decisions, it is planned or proactive, and in cases where the response is spontaneous, it is autonomous.149 In managed systems, adaptation is generally anticipatory and planned, while in unmanaged natural systems, it is more reactive and autonomous.150 143 J.B. Ruhl, “Climate Change Adaptation and the Structural Transformation of Environmental Law” (2010) 40 Envtl L 364 at 385 (QL). 144 John Smithers & Barry Smit, “Human Adaptation to Climatic Variability and Change” in E. Lisa F. Schipper & Ian Burton, eds., The Earthscan Reader on Adaptation to Climate Change (London: Earthscan, 2009) 15 at 16. 145 Schipper & Burton, “Understanding Adaptation”, supra note 140 at 1. 146 Alfons P.M. Baede, Paul van der Linden & Aviel Verbruggen, “Annex II: Glossary” in Core Writing Team, Rajendra K. Pachauri & Andy Reisinger, eds., Climate Change 2007: Synthesis Report (Geneva: Intergovernmental Panel on Climate Change, 2007) 76 at 76. 147 “Appendix I: Glossary” in M.L. Parry et al., eds., Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 869 at 869. 148 Donald S. Lemmen & Fiona J. Warren, eds., Climate Change Impacts and Adaptation: A Canadian Perspective (Ottawa: Climate Change Impacts and Adaptation Directorate, 2004) at 10. 149 A Barrie Pittock & Roger N. Jones, “Adaptation to What and Why?” in E. Lisa F. Schipper & Ian Burton, eds., The Earthscan Reader on Adaptation to Climate Change (London: Earthscan, 2009) 35 at 37–38. 150 Ibid.

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Anticipatory adaptations are considered more effective and cost-efficient.151 Planned adaptation for human societies can take varied forms. These include creating robust designs for infrastructure, fortifying a society’s ability to withstand a range of extreme weather events, devising techniques to transfer risks away from communities that are vulnerable (i.e., providing for the collective sharing of losses),152 and enhancing the adaptability of vulnerable natural systems by employing setback lines.153 It is important to note that adaptation depends considerably on the availability of sufficient adaptive capacity. In most developing economies, it is often the politically, socially, and economically marginalized groups that have the least adaptive capacity. These groups may include tribals, artisanal fishers, women, children, the elderly, and resource-dependent communities.154 Circumstances such as underdevelopment, unemployment, large-scale environmental pollution, natural resource degradation, extreme poverty, gender bias, illiteracy, institutional weaknesses and widespread corruption impair adaptive capability development.155 There is also an increasing tendency to systematically alienate traditional communities from accessing the natural resources upon which their existence and survival depends, further hindering their adaptive capacities.156 As the experience in some of the South Asian coastal countries demonstrate, traditional communities are often replaced by a different set of players (e.g., tourism operators, industries, private port operators) who are socially, economically and politically more powerful and who often seek to intensively exploit coastal resources to further their economic

151 Lemmen & Warren, eds., supra note 148 at 9. 152 Patricia Park, Anthony Gallagher & Michael Galley, “What Chance Adaptive Coastal Management for Climate Change? A Legal Dysfunction in Vertical Governance” (2010) 3:1 Sea Grant L. & Pol’y J. 59 at 66 (HeinOnline). 153 For instance, see Department of Environment, Forests and Wildlife, Ministry of Environment and Forests, Coastal Regulation Zone Notification (SO19(E), India) ¶3. 154 Anne T. Kuriakose, Livia Bizikova & Carina A. Bachofen, Assessing Vulnerability and Adaptive Capacity to Climate Risks: Methods for Investigation at Local and National Levels, Social Development Working Papers (No. 116, May 2009) at 7. 155 The primary determinants of adaptive capacity are economic wealth, technology, information and skills, infrastructure, institutions, and equity. Barry Smit & Olga Pilifosova, “Adaptation to Climate Change in the Context of Sustainable Development and Equity” in James J. McCarthy et al., eds., Climate Change 2001: Impacts, Adaptation, and Vulnerability (Cambridge: Cambridge University Press, 2001) 877 at 895–97. 156 Ibid. at 899.

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interests which may not be sustainable in the long run.157 Such barriers can undermine the success of an adaptation process and contribute to negative consequences. In other words, misguided efforts may result in maladaptation.158 As seen in the previous chapter, sustainable development, and its derivative, SCD, is a balancing act where adaptation plays a highly critical, multi-­ faceted role. In fact, climate change adaptation and sustainable development share several commonalities, such as poverty reduction, improving access to resources, and lowering inequities between inter- and intra-generations.159 When due to uncertainty, developmental projects do not provide for adaptation, there is the possibility that the development will result in negative growth and prove unviable in the long run. Moreover, the choice of implementing an adaptation program at a later stage is a more expensive prospect and, in most cases, the chances of its success are remote, since the dangers associated with climate change will have been magnified. Adaptation, then, is essentially an extension of good development practice.160 In situations where there is a higher level of development that is compatible with climate change related variability, there is also enhancement of adaptive capacity.161 Conversely, where development patterns do not take into account the need for adaptation, populations are exposed to greater levels of risk, thereby undermining their ability to adapt.162 By mainstreaming adaptation and placing it front and center in all developmental processes, the possibility of attaining sustainable growth, diversification of economic activity, enhancement of resilience capabilities, and promotion of risk pooling are

157 See generally Perspectives Group, “Swimming against the Tide: Coastal Communities and Corporate Plunder in Kutch” (2012) 47:29 Economic & Political Weekly 12. 158 Maladaptation is defined as “[a]ny changes in natural or human systems that inadvertently increase vulnerability to climatic stimuli; an adaptation that does not succeed in reducing vulnerability but increases it instead.” “Annexes” in Core Writing Team, Rajendra K. Pachauri & Andy Reisinger, eds., Climate Change 2007: Synthesis Report (Geneva: Intergovernmental Panel on Climate Change, 2008) 355 at 378. 159 Smit & Pilifosova, supra note 155. 160 Nicholas Stern & The Cabinet Office—HM Treasury, The Economics of Climate Change: The Stern Review (New York: Cambridge University Press, 2007) at 430. 161 “Summary for Policymakers: A Report of Working Group II of the Intergovernmental Panel on Climate Change” in James J. McCarthy et al., eds., Climate Change 2001: Impacts, Adaptation, and Vulnerability (Cambridge: Cambridge University Press, 2001) 1 at 12. 162 Ian Burton, Elliot Diringer & Joel Smith, “Adaptation to Climate Change: International Policy Options”, at 5, online: Pew Center on Global Climate Change .

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greatly enhanced.163 If adaptation is to be fruitful and cost-effective, it must be anchored in a principled approach164 and integrated into larger d­ evelopmental planning and implementation processes.165 Mainstreaming adaptation in existing efforts aimed at, for instance, poverty alleviation, biodiversity conservation, combating land degradation, and in ICZM can potentially produce greater sustainable results and help increase the adaptive capacities of vulnerable populations.166 From its inception, the focus of the international regime on climate change was on mitigation, primarily because nations were unwilling to admit that the regime had accomplished very little to prevent the spewing of greenhouse gases (GHGs) into the atmosphere, and that nations will have to adapt. The pendulum swung disproportionately to favor mitigation as the primary response to moderate the problems posed by climate change. This is borne out by the fact that out of a total of 26 articles, only one in the UNFCCC text specifically refers to adaptation; the situation under the Kyoto Protocol is no different.167 All the same, through a process of interpretative ingenuity, several articles in both instruments can be inter-linked to weave a scheme to trigger adaptation actions.168 In addition, the various Conferences of the Parties have played important roles in highlighting the significance of adaptation and in developing its rules. Despite this, the international legal regime on adaption draws sustenance primarily from a patchwork of multifarious rules and initiatives, and the international rules on this subject also develop rather slowly. Consequently, the regime remains riddled with ambiguity. Nevertheless, it cannot be stressed enough that mitigation and adaptation are two sides of the

163 Stern & HM Treasury, supra note 160 at 430. 164 US, The White House Council on Environmental Quality, Progress Report of the Inter­ agency Climate Change Adaptation Task Force: Recommended Actions in Support of A National Climate Change Adaptation Strategy (5 October 2010) at 10. 165 Saleemul Huq & Hannah Reid, “Mainstreaming Adaptation in Development” in E. Lisa F. Schipper & Ian Burton, eds., The Earthscan Reader on Adaptation to Climate Change (London: Earthscan, 2009) 313 at 319. 166 Ibid. 167 David Freestone, “The International Legal Framework for Adaptation” in Michael B. Gerrard & Katrina Fischer Kuh eds., The Law of Adaptation to Climate Change: U.S. and International Aspects (Illinois: American Bar Association, 2012) 603 at 604. 168 UNFCCC, supra note 82, arts. 2, 3.1, 3.2, 3.3, 4.1(b), 4.1(e), 4.1(f), 4.3, 4.4, 4.8 & 4.9; see also Kyoto Protocol to the United Nations Framework Convention on Climate Change, 16 March 1998, 37 ILM 32 (adopted at Kyoto 11 December 1997 and entered into force 16 February 2005), arts. 2.3, 3.14, 10(b) & 10(c).

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same coin and must be vigorously pursued as complementary rather than isolated approaches. As declared during Rio+20: [w]e reaffirm that climate change is one of the greatest challenges of our time, and we express profound alarm that emissions of greenhouse gases continue to rise globally. We are deeply concerned that all countries, ­particularly developing countries, are vulnerable to the adverse impacts of climate change, and are already experiencing increased impacts including persistent drought and extreme weather events, sea level rise, coastal erosion and ocean acidification, further threatening food security and efforts to eradicate poverty and achieve sustainable development. In this regard we emphasize that adaptation to climate change represents an immediate and urgent global priority.169 Given this foundational importance of adaptation, the significance and dynamics of climate change adaptation as applicable to coastal zones must be outlined. In 1988, the IPCC established three working groups, one of which was the Response Strategies Working Group. This group, in turn, established four subgroups, chief among which was the Coastal Zone Management Subgroup (CZMS), chaired by New Zealand and the Netherlands. The CZMS was entrusted with providing information and recommendations on CZM strategies and long-term policies on adaptation to climate change and SLR.170 It held two workshops, the first in Miami, Florida, and the second in Perth, Australia. Representatives from nearly 70 countries participated in both workshops and identified several adaptation responses,171 which were compiled in the report by the CZMS, and subsequently adopted by the IPCC in 1990 as part of its First Assessment Report.172 In crafting adaptation responses for coastal areas impacted by climate change and SLR, the Report of the Coastal Management Subgroup emphasized the importance of government and private sector input in coastal management.173 As well, it articulated three principal objectives of coastal management: 1) avoid development in areas vulnerable to 169 UN RIO+20 United Nations Conference on Sustainable Development, The Future We Want, A/CONF.216/L.1*, 19 June 2012, ¶190. 170 J. Dronkers et al., eds., Report of the Coastal Management Subgroup: Strategies for Adaption to Sea Level Rise (Geneva: IPCC, Response Strategies Working Group, 1990) at ii. 171 Ibid. 172 Ibid. at iii. 173 Ibid. at 6.

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inundation; 2) ensure the continual functioning of critical natural systems; and 3) protect human lives, essential properties and economic activities against the ravages of the seas.174 The report also stressed that coastal management programs should give due consideration to ecological, cultural, historic and aesthetic values, as well as to human safety and economic development.175 The report identified several climate change adaptation measures grouped under the three broad categories of retreat, accommodate and protect,176 though in practice, they overlap. Planned retreat is a form of proactive adaptation that emphasizes hazard-avoidance and reduction. Although it is difficult to implement it in countries where populations are already concentrated on the coastline, retreat seeks to prevent and remove further influxes of people and investment to areas that are vulnerable to severe erosion, flooding and weather events, all of which will be aggravated as SLR intensifies.177 As a condition precedent to implementing retreat, it is essential that there be land for resettlement. Hence, retreat may not be a viable option for small island states and for areas reeling under intense coastal squeeze, such as mega-coastal cities.178 The simplest form of planned retreat involves preventing development on vulnerable properties, placing restrictions on building within hazard zones, and permitting development in coastal areas only under stringent conditions.179 Planned retreat can be achieved by increasing public awareness and by increasing taxes on properties in vulnerable zones, setting high insurance premiums, and establishing setback lines, zoning, and buffer zones.180

174 Ibid. 175 Ibid. 176 Ibid. at 6–8. 177 See also Printz v Glenelg SC, (2010), VCAT 1975 (Austl, VCAT), online: AustLII (disallowing a dwelling on a low-risk site on the ground that it would affect buffering provided by a dune system). 178 Nick Abel et al., “Sea Level Rise, Coastal Development and Planned Retreat: Analytical Framework, Governance Principles and an Australian Case Study” (2011) 14 Envtl Sci & Pol’y 279 (ScienceDirect) (in South East Queensland, Australia, the option of planned retreat is fast disappearing). 179 Dronkers et al., eds., supra note 170 at 6. 180 For more details on utilizing tax and market based tools to facilitate adaptation, see Jessica Grannis, Adaptation Tool Kit: Sea-Level Rise and Coastal Land Use (Georgetown Climate Center, 2011) at 54–56; Lloyd’s, Coastal Communities and Climate Change: Maintaining Future Insurability, at 23, online: LLOYD’S (emphasizing the key role of the insurance industry in facilitating adaptation).

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Accommodation involves advanced planning and realization that some coastal zone values will invariably be lost.181 In other words, some people will have to abandon their homes and relocate to higher ground. Accommodation can take several forms—from “building codes and resilient designs,”182 to rebuilding restrictions and redesigning structures to minimize impacts (e.g., elevating residential and commercial buildings on pilings to protect them from floods).183 Measures like modifying drainage, rezoning vulnerable properties to discourage inappropriate land use, increasing natural resilience through coastal dune rehabilitation, beach nourishment184 and wetland renewal also fall under accommodation,185 as do prohibitions on activities that impair the natural protection values of coastal ecosystems. These can include restrictions on infilling wetlands, cutting down mangroves, and mining corals and beach sand.186 The most effective implementation of planned retreat and accommodation is through legislated setback regulations.187 Setback lines are determined with reference to the tide line (the high water mark or the low water mark, the vegetation line, or a line that is associated with the primary dune), and restrictions can take the form of prohibitions on the setting up of new infrastructure seaward of the setback line.188 Setback lines must be determined by employing the best available science to ensure that coastal constructions are moved sufficiently inland to protect them from harmful waves and erosion.189 181 Dronkers et al., eds., supra note 170 at 6. 182 Grannis, supra note 180 at 23. 183 In Maasbommel (the Netherlands), houses are built to float on water. Facing up to Rising Sea-Levels: Retreat? Defend? Attack?, The Future of our Coastal and Estuarine Cities, at 8, online: Building Futures ; see also Taip v East Gippsland SC (includes Summary) (Red Dot), (2010), VCAT 1222 (Austl, VCAT) online: AustLII (holding that it is not enough for a building to be raised to a certain level to protect it from SLR; the sweep of other impacts also need to be taken into account). 184 Stop the Beach Renourishment, Inc. v Florida Dep’t of Environmental Protection (2010) USSC 08–1151, 130 S Ct 2592 (2010). 185 Dronkers et al., eds., supra note 170 at 7. 186 Ibid. 187 Timothy Beatley, David J. Brower & Anna K. Schwab, An Introduction to Coastal Zone Management, 2d ed. (Washington, DC: Island Press, 2002) at 138. 188 “Review of U.S. Ocean and Coastal Law: The Evolution of Ocean Governance Over Three Decades, Appendix 6 to the Final Report” in U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century: Final Report (Washington, DC, 2004) at 28. 189 James E. Neumann et al., Sea-level Rise & Global Climate Change: A Review of Impacts to U.S. Coasts (Pew Center on Global Climate Change, 2000) at 20.

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Demarcating buffer zones is another method to implement accommodation and retreat. Akin to setbacks, properties that offer critical natural processes (like buffering flood impacts, preserving aesthetics, and ensuring public access) are left untouched so that ecosystems such as wetlands are able to migrate inland with minimal impediments.190 Zoning and overlay zones are additional adaptation techniques. Given that a single storm may have the strength to haphazardly pull down constructed buildings and wash away roads and other critical infrastructure, zoning emerges as an important land-use planning tool that can minimize susceptibility to storms and coastal erosion through smart planning.191 Typically, zoning is the responsibility of local governments that divide an area into zones based on various criteria (e.g., earmarking land for residential, commercial, industrial and other purposes).192 The demarcations are plotted on a map and development proceeds based on the zoning regulations. In order not to disrupt existing zoning classifications, local governments sometimes superimpose additional regulatory requirements in areas with special characteristics. This mechanism can be utilized to create a SLR overlay zone for areas that are most vulnerable to inundation and flooding.193 Overlays can disallow or impose new conditions on expansion or renovation of existing structures, prohibit or impose conditions on the rebuilding of damaged structures, or require the elevation of rebuilt structures.194 Rebuilding restrictions may constrain landowners from reconstructing structures substantially destroyed by natural hazards. This may take the form of a total prohibition on re-construction or permit construction under stringent conditions.195 Land and easement acquisition can also be used to implement planned retreat and accommodation.196

190 Ibid. at 26. 191 Village of Euclid v Amber Realty Company, 272 US 365, 47 S Ct 114, 71 L Ed. 303, 1926 US LEXIS 8. 192 Cormac Cullinan, Integrated Coastal Management Law: Establishing and Strengthening National Legal Frameworks for Integrated Coastal Management, FAO Legislative Study, No. 93 (Rome: FAO, 2006) at 187. 193 Grannis, supra note 180 at 19–20. 194 Ibid. at 19. 195 Ibid. at 31; see also Neumann et al., supra note 189 at 20 (South Carolina’s Beachfront Management Act, 1988, states that structures incurring damages of more than two-thirds of pre-storm value cannot be reconstructed). 196 Grannis, supra note 180 at 41, 47, 50–52. For more details on the concept of rolling easements, see also Ch. 6.

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Generally, ‘retreat and accommodate’ strategies are based on the assumption that, inevitably, there will be land loss and coastal flooding and that some coastal functions and values will be lost or altered. The focus is to help retain the dynamic nature of coastal ecosystems by allowing them to naturally adapt to SLR and other climatic processes.197 The last in the trio of adaptation measures is protection, which seeks to insulate coastal residents from harmful impacts. This is achieved to varying degrees through the construction of a range of defensive coastal armoring and other measures to strengthen the ability of existing protective structures. These commonly take two forms: hard and soft coastline protection measures (or structural and non-structural devices). Hard shoreline armoring is the conventional option adopted to combat SLR. It involves the use of engineering expertise to build solid structures like bulkheads, seawalls, revetments, dykes, groins, tide gates, and storm surge barriers to barricade the coast against flooding and erosion.198 Their construction is expensive199 and their long-term durability to hold back a rising sea is limited. In certain cases, particularly from an ecological perspective, this measure can have counter-productive consequences on neighboring properties. For instance, the construction of storm walls may end up preventing the natural inland migration of wetlands and mangroves, ultimately leading to their loss,200 and groins can entrap sediments that move along the shore. Often, protection to one area is achieved at the expense of increased erosion in another.201 While construction of dams and salt-water intrusion barriers can safeguard water supplies, they can have negative consequences, such as 197 Luitzen Bijlsma et al., “Coastal Zones and Small Islands” in Robert T. Watson, Marufu C. Zinyowera & Richard H. Moss, eds., Climate Change 1995: Impacts, Adaptations, and Mitigation of Climate Change: Scientific-Technical Analyses, Contribution of Working Group II to the Second Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 1996) 289 at 311. 198 Grannis, supra note 180 at 36. 199 Neumann et al., supra note 189 at 18. 200 Eric Gilman et al., Pacific Island Mangroves in a Changing Climate and Rising Sea, UNEP Regional Seas Reports and Studies No. 179 (Nairobi: United Nations Environment Programme, Regional Seas Programme, 2006) at 9 (landward migration of mangroves can be obstructed by seawalls); see also Bijlsma et al., supra note 197 at 302. 201 Dronkers et al., eds., supra note 170 at 9; Gambia, First National Communication of the Republic of the Gambia to the United Nations Framework Convention on Climate Change (Gambia: Department of State for Fisheries, Natural Resources and the Environment, Department of Water Resources, National Climate Committee, 2003) at 64.

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increasing sedimentation, which will erode coastal headlands and impair the ability of deltaic wetlands to naturally adapt to a rising sea.202 Furthermore, by interfering with the process of littoral drift, hard armoring can increase erosion and exacerbate flooding.203 As well, it can restrict public access and prevent the ­launching and landing of traditional catamarans that are used for fishing operations in the vast majority of coastal areas in the developing world.204 But perhaps the biggest drawback of hard shoreline armoring is that it lulls government authorities, developers, and more importantly, coastal communities into a false sense of security and complacency that all is well, so that a ‘business-asusual approach’ towards coastal development can continue.205 Consequently, shoreline armoring is now only used when it is absolutely necessary to protect critical infrastructure or in cases where the area is intensely developed and supports a huge population, making relocation difficult.206 Preference is given instead to soft armoring (“natural infrastructure” or “living shorelines”), which offers substantial protection against inundation, tidal flooding, wave impact, shore erosion, and salinity intrusion.207 Soft armor202 Dronkers et al., eds., ibid. at 12. 203 As originally enacted, South Carolina’s Coastal Zone Management Act of 1977 provided for seawalls, bulkheads, and other erosion control methods, which were later found to increase coastal erosion. Accordingly, the Beachfront Management Act amended this Act in 1988. See also Byron Shire Council v Vaughan, Vaughan v Byron Shire Council, (2009), [2009] NSWLEC 88 and (No. 2) [2009] NSWLEC 110. The Land and Environment Court granted injunction restraining the respondents from putting up a rock wall as it could adversely impact neighboring properties. Ibid. The construction of the harbor and two breakwaters in Pondicherry, India, in 1989, affected the littoral drift and since then the beaches there have been eroding. India, Ministry of Environment & Forests, Final Frontier: Agenda to Protect the Ecosystem and Habitat of India’s Coast for Conservation and Livelihood Security, Report of the Expert Committee on the Draft Coastal Management Zone (CMZ) Notification, Constituted by the Ministry of Environment and Forests, Under the Chairmanship of Prof. MS Swaminathan (New Delhi: Ministry of Environment & Forests, 2009) at 21. 204 Sudarshan Rodriguez et al., Policy Brief: Seawalls (UNDP/UNTRS: Chennai & ATREE: Bangalore, 2008) at 3. 205 Grannis, supra note 180 at 38. 206 Dronkers et al., eds., supra note 170 at 7; see also US, Living Shoreline Protection Act, Md C Ann Envir §16–201(c)(1)(i) (2008). 207 Robert R.M. Verchick & Joel D. Scheraga, “Protecting the Coast” in Michael B. Gerrard & Katrina Fischer Kuh, eds., The Law of Adaptation to Climate Change: U.S. and International Aspects (Chicago: American Bar Association, 2012) 235 at 250; Living Shoreline Protection Act, ibid.

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ing measures can take various forms, like artificial nourishing of beaches, dune creation,208 protection of existing and creation of new bioshields (such as m ­ angrove replanting,209 wetland restoration,210 and coastal forestry promotion),211 and the protection of other coastal ecosystems. While soft armoring may be less expensive than hard armoring, it may require constant upkeep and monitoring, and like hard armoring, it may be impractical to implement on a large scale.212 There are several adaptation measures some of which can be classified under the three broad groupings of retreat, accommodate and protect, while others can be categorized as miscellaneous. Nevertheless, all of these can be utilized to secure CCCA. And this is so because, CCCA is three-dimensional—it addresses the right to development and enhances human capabilities; it seeks to protect and enhance the resiliency of coastal ecosystems; and it addresses climate change impacts. Below, an analysis of different CCCA measures is carried out based on this three-dimensional facet of CCCA.213

208 Grannis, supra note 180 at 39. 209 In wake of the Indian Ocean tsunami, Malaysia and China are taking steps to protect mangroves, including their replanting. Poh Poh Wong, “Rethinking Post-tsunami Integrated Coastal Management for Asia-Pacific Ocean and Coastal Management” (2009) 52 Ocean & Coast Mgmt 405 at 407 (ScienceDirect). 210 The Pichavaram wetlands in the South Indian State of Tamil Nadu acted as a buffer against the Indian Ocean tsunami, saving several villages from a total washout. In areas where the mangroves were destroyed as in the nearby Nagapattinam district, the destruction was intense. Ibid. at 407. The degree of protection afforded by mangroves depends on a host of factors like soil texture and angle of tsunami incursion relative to the coastline. Daniel M. Alongi, “Mangrove Forests: Resilience, Protection from Tsunamis, and Responses to Global Climate Change” (2008) 76 Estuarine, Coastal and Shelf Sci 1 at 6 (ScienceDirect). 211 See also Keith Forbes & Jeremy Broadhead, The Role of Coastal Forests in the Mitigation of Tsunami Impacts, RAP Publication 2007/1 (Bangkok: FAO Regional Office for Asia and the Pacific, 2007). 212 In the case of beach nourishment, as the sea level rises and as more sand is scoured away by wave action, cheaper sand resources may get exhausted and nourishment may cease to be cost-effective. Neumann et al., supra note 189 at 19. 213 The assessment and method for scoring used in Table 1 is reflective of the author’s subjective opinion based on his personal understanding of coastal climate change adaptation. It is accordingly acknowledged that an alternative assessment and method for scoring is possible.

222 Table 1

chapter 5 CCCA Measures and SCD SUSTAINABLE COASTAL DEVELOPMENT

√

√

√

√

√

√

√

√

√

√

√

√

√

Rising sea surface temperatures Ocean acidification Extreme weather events Erratic precipitation patterns

Sea level rise

Protecting human health Accessing ecosystems goods and services

√

Enhancing coastal ecosystem resilience

The creation of MPAs and sanctuaries214 Wetland restoration215 Use of water-­ cooling and desalination plants216 Use of grey water217

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

COASTAL CLIMATE CHANGE ADAPTATION MEASURES

√

√

√

√

√

  √

√

214 Egypt, Egypt Second National Communication under the United Nations Framework Convention on Climate Change (Cairo: Egyptian Environmental Affairs Agency, 2010) at 91 [Egypt, Egypt Second National Communication]. 215 Ibid. at 88. 216 World Water Assessment Programme, Managing Water under Uncertainty and Risk, vol. 1, The United Nations World Water Development Report 4 (Paris: UNESCO, 2012) at 58 (coastal desalination plants discharge brine into neighboring waters, which can negatively impact coastal marine ecology); see also Angela Haren Kelley, “Seawater Desalination: Climate Change Adaptation Strategy or Contributor?” (2011) 38 Ecology L. Currents 40 at 44–45 (QL). 217 R.F. Michael Snodgrass, Note, “The Reuse of Household Water: A Small Step Toward Sustainable Living and Adaptation to Climate Change” (2010) 22 Geo. Int’l Envtl L Rev 591 (QL) (outlining the featuresof greywater laws); Mauritius, Second National Communication under the United Nations Framework Convention on Climate Change (Vacoas: Government of Mauritius, 2010) at 81 [Mauritius, Second National Communication].

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Planting of sea grass218 Rainwater harvesting219 Use of renew­able energy sources220 Facilitating inland migration of coastal ecosystems by removing barriers221

Sea level rise

Enhancing coastal ecosystem resilience

Protecting human health Accessing ecosystems goods and services

Rising sea surface temperatures Ocean acidification Extreme weather events Erratic precipitation patterns

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

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218 Saudi Arabia, Second National Communication: Kingdom of Saudi Arabia (2011) at 104 [Saudi Arabia, Second National Communication]. 219 Saint Lucia, Second National Communication on Climate Change for Saint Lucia (Saint Lucia: Ministry of Physical Development and the Environment, 2011) at 152; Cook Islands, National Environment Service, Cook Islands Second National Communication under the United Nations Framework Convention for Climate Change (Cook Islands: National Environment Service, 2011) at 49, 52 [Cook Islands, Cook Islands Second National Communication]. 220 Alfred Micallef & Charles V. Sammut, The Second Communication of Malta to the United Nations Framework Convention on Climate Change (Malta: Ministry for Resources and Rural Affairs, 2010) at 341. 221 Israel, Ministry of Environmental Protection, Israel’s Second National Communication on Climate Change Submitted under the United Nations Framework Convention on Climate Change (Jerusalem: Ministry of Environmental Protection, 2010) at 93 [Israel, Second National Communication].

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Sea level rise

Rehabilitation of coral reefs222 Floating homes223 Improving coastal medical health facilities to deal with epidemics such as malaria, cholera, and 222223224 dengue fever224

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Protecting human health Accessing ecosystems goods and services

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Enhancing livelihood opportunities

Enhancing coastal ecosystem resilience

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Rising sea surface temperatures Ocean acidification Extreme weather events Erratic precipitation patterns

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222 Ibid. at 23 (prevention of marine pollution from land sources to reduce stress on coral reefs); Solomon Islands, Initial National Communications under the United Nations Framework Convention on Climate Change, at 30, online: UNFCCC [Solomon Islands, Initial National Communications]. 223 In the village of Massbommel on the banks of River Mass, in Netherlands, 37 water floating homes have been created. UNDP, Human Development Report 2007/2008: Fighting Climate Change: Human Solidarity in a Divided World (New York: UNDP, 2005) at 165. 224 Robin Kundis Craig, “A Public Health Perspective on Sea-Level Rise: Starting Points for Climate Change Adaptation” (2010) 15:2 Widener L Rev 521 at 534(QL).

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Destroying insect breeding sites225 Preventing introduction of invasives226 Shoreline armoring, which includes construction of dykes, sea walls, breakwaters, flood protection systems, ripraps and groins, and their constant upkeep and refurbishment227

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Sea level rise

Enhancing coastal ecosystem resilience

Protecting human health Accessing ecosystems goods and services

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Rising sea surface temperatures Ocean acidification Extreme weather events Erratic precipitation patterns

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

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225 Singapore, National Environment Agency, Singapore’s Second National Communication under the United Nations Framework Convention on Climate Change (Singapore: National Environment Agency, 2010) at 32. 226 Israel, Second National Communication, supra note 221 at 81. 227 Suriname, First National Communication under the United Nations Framework Convention on Climate Change (Suriname: National Institute for Environment and Development (NIMOS), 2005) at 54 [Suriname, First National Communication]; Egypt, Egypt Second National Communication, supra note 214 at 89 (emphasising the need to strengthen the Mohamed Ali Wall).

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Land-use √ planning230 Disaster 228229230231 √ management231

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Rising sea surface temperatures Ocean acidification Extreme weather events Erratic precipitation patterns

Sea level rise

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Protecting human health Accessing ecosystems goods and services

Enhancing coastal ecosystem resilience

Restoring degraded coastal environments228 Floodplain management229

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

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228 Micallef & Sammut, supra note 220 at 269. 229 Grannis, supra note 180 at 20–22. 230 Section B Programs Containing Measures to Facilitate Adequate Adaptation to Climate Change, at 401, online: MCTI . 231 Mauritius, Second National Communication, supra note 217 at 86; Tonga, Lu’isa Tu’i’afituMalolo, ed., Second National Communication (Nuku’alofa, Tonga: Second National Communication on Climate Change Project, 2012) at 120 [Tonga, Tu’i’afitu-Malolo].

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Rising sea surface temperatures Ocean acidification Extreme weather events Erratic precipitation patterns

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Protecting human health Accessing ecosystems goods and services

Sea level rise

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Enhancing coastal ecosystem resilience

Insurance232 Mapping coastal resources and monitoring coastal areas233 Sand banking and dune protection234

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

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232233 234

232 Seychelles, Ministry of Environment & Transport, Initial National Communication under the United Nations Framework Convention on Climate Change (Seychelles: Ministry of Environment & Transport, 2000) at 89 [Seychelles, Initial National Communication]. 233 One of the adaptation measures adopted by China is to strengthen its coastal monitoring system by using satellite remote sensing. China, Initial National Communication on Climate Change (Beijing, 2004) at 71 [China, Initial National Communication]; Israel, Second National Communication, supra note 221 at 93 (advocating the continued monitoring of changes to coastal cliffs, by high resolution photogrammetric mapping and by airborne laser mapping). 234 Egypt, Egypt Second National Communication, supra note 214 at 88; Seychelles, Initial National Communication, supra note 232; see also Saudi Arabia, Second National Communication, supra note 218.

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Table 1 ( cont.) SUSTAINABLE COASTAL DEVELOPMENT

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Protecting human health Accessing ecosystems goods and services

Enhancing coastal ecosystem resilience

Sharing ­experiences and know-how among coastal nations235 Regulating population migration to vulnerable areas and re-settlement236

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

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235 James Tobey et al., “Practicing Coastal Adaptation to Climate Change: Lessons from Integrated Coastal Management” (2010) 38 Coastal Mgmt 317 at 317; Bahrain, Public Commission for the Protection of Marine Resources, Environment and Wildlife, Bahrain’s Second National Communication under the United Nations Framework on Climate Change (Bahrain, 2012) at 28 [Bahrain, Bahrain’s Second National Communication] (advocating regional cooperation among neighboring countries to share information on the regional impacts of development activities on sediment transport). 236 Seychelles, Initial National Communication, supra note 232 at 88; Nigeria, Ministry of Environment, Nigeria’s First National Communication under the United Nations Framework Convention on Climate Change (Abuja: Ministry of Environment, 2003) at 89 (advocating resettlement); Solomon Islands, Initial National Communications, supra note 222.

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Protecting human health Accessing ecosystems goods and services

Enhancing coastal ecosystem resilience

Public ­participation in coastal ­management and decision-­making237 Creating public awareness regarding the possible impacts of SLR238 Regulating groundwater extraction239 Protecting fisheries240

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

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237 Bahrain, Bahrain’s Second National Communication, supra note 235. 238 Bahrain, General Commission for the Protection of Marine Resources, Environment & Wildlife, Bahrain’s Initial Communications to the United Nations Framework Convention on Climate Change Volume I: Main Summary Report (Bahrain: General Commission for the Protection of Marine Resources, Environment & Wildlife, 2005) at 23 [Bahrain, Initial Communications to the UNFCCC]. 239 Ibid. 240 Korea, Korea’s Third National Communication under the United Nations Framework Convention on Climate Change, Low Carbon, Green Growth, at 113, online: UNFCCC . For instance, South Africa is implementing the ecosystem approach to fisheries, the code of conduct for responsible fisheries, and

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Table 1 ( cont.) SUSTAINABLE COASTAL DEVELOPMENT

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Climate √ proofing241 Maintaining √ drainage systems to prevent silt formation242 Establishing observation and early warning systems243 241242243



CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

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individual quota rights. South Africa, Department of Environmental Affairs, South Africa’s Second National Communication under the United Nations Framework Convention on Climate Change (Pretoria, South Africa: The Department of Environmental Affairs, 2001) at 141 [South Africa, Second National Communication]. 241 Cook Islands, Cook Islands Second National Communication, supra note 219 at 45. 242 Seychelles, Initial National Communication, supra note 232 at 88. 243 United Arab Emirates, Ministry of Energy, Second National Communications to the Conference of the Parties of United Nations Framework Convention on Climate Change (Abu Dhabi: Ministry of Energy, 2010) at 29 (calls for the establishment of a Coastal Adaptation Center); China, Initial National Communication, supra note 233 (proposing to strengthen its coastal monitoring system, particularly, satellite remote sensing and geographical information systems).

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Establishing set-back zones244 Land acquisition245 Mangrove re-generation, coastal forestry and setting up green belts246 Controls on over-harvesting of inert materials 244245246247 from coastal zones247

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Enhancing coastal ecosystem resilience

Protecting human health Accessing ecosystems goods and services √

Rising sea surface temperatures Ocean acidification Extreme weather events Erratic precipitation patterns

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

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244 South Africa, Second National Communication, supra note 240 at 142; Solomon Islands, Initial National Communications, supra note 222. 245 David Owens, “Land Acquisition and Coastal Resource Management: A Pragmatic Perspective” (1983) 24:4 Wm & Mary L Rev 625 at 630 (QL). 246 On-going adaptation measures include measures like re-forestation and cutting down trees affected by disease. Mauritius, Second National Communication, supra note 217 at 91. 247 Vanuatu, National Communication to the Conference of the Parties to the United Nations Framework Convention on Climate Change (1999) at 34; see also Cape Verde, Second National Communication on Climate Change of Cape Verde: United Nations Framework Convention for Climate Change (Cape Verde: Ministry of Environment Rural Development and Marine Resources, 2010) at 84.

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Table 1 ( cont.) SUSTAINABLE COASTAL DEVELOPMENT

Improving livelihood opportunities of coastal communities248 Protecting lagoons, coral reefs, salt marshes, mud flats and wildlife habitats249

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Enhancing coastal ecosystem resilience

Protecting human health Accessing ecosystems goods and services

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Rising sea surface temperatures Ocean acidification Extreme weather events Erratic precipitation patterns

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

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248 J. Campbell, E. Whittingham & P. Townsley, “Responding to Coastal Poverty: Should we be Doing Things Differently or Doing Different Things?” in Chu Thai Hoanh et al., eds., Environment and Livelihoods in Tropical Coastal Zones: Managing Agriculture–Fishery– Aquaculture Conflicts (Oxon: CAB International, 2006) 274 at 286 (‘alternative livelihoods’ is the new mantra for many in the coastal management world). 249 For instance, see Antigua and Barbuda, Antigua and Barbuda’s Second National Communication on Climate Change (2009) at 139, online: UNFCCC (advocating the constitution of MPAs).

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Controlling land-based sources of marine pollution250 Sensitizing the general public and coastal ­communities to possible impacts251 Strengthening law enforcement252 Recognizing traditional coastal management practices and know-how253

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Enhancing coastal ecosystem resilience

Protecting human health Accessing ecosystems goods and services

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Enhancing livelihood opportunities

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250 Israel, Second National Communication, supra note 221 at 93. 251 Tonga, Tu’i’afitu-Malolo, supra note 231. 252 Egypt, Egypt Second National Communication, supra note 214 at 91. China has enacted national and local laws on the sea, revised its marine environmental protection law and has published regulations on the marine environmental protection, mangrove protection and coral reef protection) China, Initial National Communication, supra note 233 at 70. 253 Mirjam Macchi, “Indigenous and Traditional Peoples and Climate Change”, Issues Paper (IUCN, March 2008) at 7.

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Table 1 ( cont.) SUSTAINABLE COASTAL DEVELOPMENT

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Enhancing coastal ecosystem resilience

Inter-linking issuebased sectoral ­management by a more holistic process254 Formulating guidelines and legislation for ICZM implementation255

CLIMATE CHANGE IMPACTS Which particular climate change impact does it address?

COASTAL RIGHT TO DEVELOPMENT AND ENHANCEMENT OF ENVIRONMENTAL PROTECTION ADAPTIVE CAPABILITIES How does it How does this measure advance advance the right to ­environmental development? protection?

Enhancing livelihood opportunities

COASTAL CLIMATE CHANGE ADAPTATION MEASURES

254 Israel, Second National Communication, supra note 221 at 93 (incorporate climate change implications in the land-use planning of the coastal area). 255 Bahrain, Initial Communications to the UNFCCC, supra note 238; Suriname, First National Communication, supra note 227; Egypt, Egypt Second National Communication, supra note 214 at 89; Saudi Arabia, Second National Communication, supra note 218 at 107–8; Mozambique, Ministry for Co-ordination of Environmental Affairs, Mozambique Initial National Communication under UN Framework at 76–81.

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It is thus clear that an ever-rising sea, the ferocity and increasing occurrence of extreme weather events and an increasing surge in people settling in coastal areas all signal the urgent need for CCCA. As Table 1 reveals, CCCA is a three-dimensional process that addresses the right to development and enhancement of human capabilities, protects and enhances the resiliency of coastal ecosystems and addresses climate change related impacts. As such, CCCA demands a twin-track approach where these measures must bolster coastlines and simultaneously help people increase their adaptive capacities. But, coastal adaptation is a dynamic process with no ‘silver bullet’ solution that can be applied across the board. The development of a particular response depends on the circumstances of each coastal region and adaptation responses have to be practical, flexible and sustained. Presently, a major chunk of the coastal zone climate change adaptation measures are being implemented via land-use management planning tools, and reference is rarely made to the larger ICZM objectives and goals. If SCD is to be attained, this necessarily needs to change and CCCA measures (even if they continue to be part of land use planning or other strategies) must be sufficiently integrated to be a necessary component of an ICZM program. This point is elaborated below. 5.6

Linking Coastal Climate Change Adaptation to ICZM: Two Sides of the Same Coin?

To be effective and results-oriented, adaptation strategies have to be flexible within spatial and temporal scales.256 Designing an appropriate adaptation response is therefore a complex task and may require a mix of different adaptation options. Inevitably, there will be a certain amount of overlap.257 As mentioned above, most SLR adaptation measures are treated primarily as interventions that emanate as part of land-use planning and are generally the responsibility of local authorities/governments.258 When land-use tools are applied to coastal zones to achieve climate change adaptation, local­

256 Charles T. O’Reilly, Donald L. Forbes & George S. Parkes, “Defining and Adapting to Coastal Hazards in Atlantic Canada: Facing the Challenge of Rising Sea Levels, Storm Surges, and Shoreline Erosion in a Changing Climate” in Aldo Chircop & Moira McConnell, eds., Ocean Yearbook, vol. 19 (Chicago: The University of Chicago Press, 2005) 189 at 206. 257 Dronkers et al., eds., supra note 170 at 8. 258 Grannis, supra note 180 at 2–4 (outlining 18 different land use tools to respond to SLR).

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authorities/governments, particularly those in the developing world, find themselves ill-equipped to work out the operational specifics of a program that has far-reaching implications. For instance, Bangladesh implemented the Coastal Embankment Project, which produced immediate benefits in terms of bringing more areas under cultivation. But since adequate heed was not paid to proper engineering and larger environmental implications, within a decade, the protection structures were identified to be a major cause of water logging and drainage congestion leading to annual economic losses of about USD5 million, apart from other environmental impacts.259 The poor maintenance of the embankments compounded these issues.260 Again, in certain cases, coastal populations may have to be relocated to areas that lie outside the jurisdiction of that particular local government. Leaving such critical decisions to local governments can lead to fragmented and uncoordinated responses that can frustrate the larger national goals for climate change adaptation. Thus, it is necessary that interlinkages are established and an operational command that involves authorities/governments at all levels is put in place to respond to the challenges. It must also be emphasized that CCCA is not solely about utilizing land-use tools. The objective of all CCCA measures is to increase resilience and this is the most crucial element in climate change adaptation.261 In coastal adaptation semantics, coastal resilience refers to the capacity of coastal communities and natural systems to prevent or cope with climate change impacts and SLR.262 Generally, coastal resilience can be fortified by decreasing the probability of hazard occurrence through managed retreat, protection, accommodation, or 259 Dipak Kamal, Biodiversity Conservation in the Coastal Zone of Bangladesh (MMM Thesis, Dalhousie University, 1999) [unpublished] at 48–49; see also Banglapedia, Embankment, online: BANGLAPEDIA ; see also Bangladesh, Ministry of Environment & Forest, Initial National Communication under the United Nations Framework Convention on Climate Change (UNFCCC) (Dhaka: Ministry of Environment & Forest, 2002) at 30. 260 Flow regulators were not incorporated into the design of existing embankments leading to saline flooding. Kamal, ibid. at 55–56. As well, since the 1960s, polders were constructed to protect coastal agricultural land without sufficient number of sluice gates, magnifying water logging. Ibid. at 63. 261 R.F. McLean & Alla Tsyban, “Coastal Zones and Marine Ecosystems” in James J. McCarthy et al., eds., Climate Change 2001: Impacts, Adaptation, and Vulnerability (Cambridge: Cambridge University Press, 2001) 335 at 368. 262 Ibid.; Sea level and Coastal Hazards are on the Rise, Placing Natural and Human Communities at Great Risk: Coastal Resilience Can Help, online: Coastal Resilience .

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facilitating recovery when impacts do occur.263 These are only some of the techniques adopted to increase resilience, which can also be rejuvenated by increasing the socio-economic capacity of coastal communities to prepare for SLR and climate change impacts in coastal zones, while at the same time retaining opportunities for coastal development.264 In other words, adapting to SLR and other climate change impacts should not be limited to building codes, buffer zones, and set back lines. Rather, it is an intricate process that is also contingent upon an enlightened approach to ICZM, and one that seeks to improve the adaptive capacities of coastal communities by bettering residents’ lives and helping them move towards SCD. This effort must also be geared toward decreasing the probability of hazards by employing managed retreat, protection and accommodation. Though adaptation can operate independently as part of land-use planning and other sectoral programs, it definitely has to work within the broader ICZM scheme for sustainable results. A few illustrations are offered below on this point. Marine fisheries are a vital economic resource in most coastal countries. Close to 95 per cent of the world’s catch is concentrated in coastal waters and in the 200-mile exclusive economic zones of maritime states.265 Nowadays, the fishing industry aspires to catch more fish than at any time in the past. The paradox is that despite their best efforts, they end up catching fewer fish due to overfishing, the use of harmful fishing practices, fish migrations caused by rising water temperatures, destruction of marine habitats, and widespread pollution of oceanic waters, all of which have negatively impacted the sustainability of several fisheries. There have been dramatic fish stock collapses in several parts of the world, a crisis aggravated by severe climatic anomalies. It is therefore imperative that sufficient numbers of commercially important fish species are maintained, since artisanal fisheries are dependent on the stock of such species for their livelihood and dietary requirements. However, the primary response to these developments is to further limit access to fishery resources, which puts disadvantaged low-income coastal communities in deeper distress, rendering many of these fishery-based subsistence economies obsolete.266 In the long run, these developments can also impact national economic growth. 263 McLean & Tsyban, ibid. 264 Ibid. 265 Ibid. at 369. 266 For instance, in light of the warming of the Benguela current, Namibia faces the challenge of fisheries migration and this raises the question whether Namibia should invest in fish processing or not? See UNDP, Human Development Report 2007/2008: Fighting Climate Change: Human Solidarity in a Divided World (New York: UNDP, 2005) at 172.

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All of this necessitates dovetailing CCCA measures and fisheries management with ICZM to produce a more holistic response to offset adverse impacts, especially when managerial decisions relating to fishing are being made.267 Similarly, implementing retreat and the consequent relocation of coastal communities is an exceptionally difficult and costly affair, particularly when alternative land is limited due to coastal squeeze. For impoverished coastal communities, relocation is practically impossible, as they do not have the financial wherewithal to ensure a smooth relocation. Moreover, operationalization of retreat options produces significant socio-economic and cultural implications, particularly in cases where there is complete abandonment of existing coastal settlements during relocation. The loss of a traditional environment can severely disrupt livelihoods and cultural legacies and produce social instability.268 Migration can lead to further societal and economic tensions, particularly when there are people already inhabiting the place of relocation. It is thus imperative that the emphasis of CCCA should be to ensure that adaptive capacities of impoverished coastal communities are strengthened so they can relocate to new areas with minimal inconvenience and disruption. Generally, the lifestyles of coastal inhabitants are intrinsically linked to the coasts and therefore, if adaptation options are to generate substantial results, the interests of those being relocated must be served by linking the preparation and implementation phases of retreat with ICZM. It is also obvious that the maintenance of and access to freshwater supplies is a critical requirement if coastal areas are to remain habitable. With rising seas, there is the possibility of salinity ingress and contamination of both surface sources and ground water aquifers. It is thus necessary that “proactive adaptation measures” be adopted, such as regulating the commercial extraction of groundwater from coastal fossil aquifers, adopting large-scale rainwater harvesting measures in coastal areas, and regulating point and non-point discharges into water bodies. An integrated approach that combines water planning and management with ICZM can help reduce the undesirable impacts of SLR on water sources. When a resource is overexploited or an ecosystem is degraded, there is not only a reduction in its principal and inherent functions, but there is also a ripple effect that significantly lowers the performance of other subsidiary 267 Ibid. at 370. Some of the prominent adaptation measures suggested include aquaculture, management of the fish trade industry, creation of marine biosphere reserves, and protected areas for marine mammals. Ibid. 268 For a discussion regarding climate change refugees and the internally displaced, see Ch. 2, Part 2.4.

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functions. For example, when a large swathe of mangroves is cleared to make way for a thermal power plant, apart from the recycling and basic amenity functions that mangroves perform (which are lost forever), there is an indirect impact on several other related aspects. These include the loss of a breeding ground for fish, which can indirectly affect the food chain and livelihood prospects of those who live and work in the area. Even though the establishment of a thermal power plant after cutting down mangroves may in the short term result in large financial payoffs, over time, it will contribute to greater environmental damage, increase climate change vulnerability and adversely impact the local subsistence economy thereby reducing the capacity of local communities to adapt to the harmful consequences of climate change. In most cases, it cannot be assumed that the short-term economic benefits will outweigh the long-term costs of such environmental disruptions. As the climate changes, oceans rise, and wind and wave action become more intense, coastal lands that once housed mangroves may become inundated unless expensive hard structures are erected. This will at once, wipe out a significant portion of the economic benefits gained by the operation of the thermal power plant. Moreover, erecting hard structures on the coastline is no guarantee of foolproof protection and generally they do not match the natural protection afforded by the mangroves.269 To avoid the occurrence of such unsustainable scenarios, it is necessary to predicate to the implementation of the thermal power project, the impact of SLR and the potential of coastal ecosystems to keep a rising sea at bay. From the above illustrations, it is apparent that if SCD is to be realized, then adaptation concerns must be integrated into the broader milieu of coastal planning and management.270 In Figure 4, the different adaptation measures identified in the previous sections have been grouped under eight heads. As can be seen, it is possible to draw linkages between these adaptation measures. In certain instances, the relationship between the measures is very strong (as in the case of MPAs and wetland protection), while in others, it is weak (destroying insect breeding sites and insurance). But in all cases, the measures can be interlinked as they promote coastal environment protection, development and adaptation, and they can be implemented via an ICZM web to foster the central goal of SCD. Effective adaptation to climate change and SLR requires a flexible coastal management strategy that incorporates and integrates short-term goals (e.g., 269 Environmental Justice Foundation, Mangroves: Nature’s Defence against Tsunamis (London: Environmental Justice Foundation, 2006) at 7–13. 270 Bijlsma et al., supra note 197 at 312.

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maintenance of all natural functions of coastal ecosystems at sustainable levels) with long-term ones (adaptation to climate change and SLR through retreat, accommodation and protection) to realize the fundamental objective of SCD.271 Such an effort must also include the development of sufficient capacity for disaster management.272 ICZM has international recognition as the most viable and appropriate methodological response to deal with SLR and other climate change impacts on coastal zones, including other short- and long-term multiple threats like 271 Ibid. 272 Richard J. Nicholls & Poh Poh Wong, “Coastal Systems and Low-Lying Areas” in M.L. Parry et al., eds., Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 315 at 341.

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rapid degradation of coastal resources and widespread coastal pollution.273 ICZM, the IPCC observes is, “the most appropriate process to deal with climate change, sea-level rise and other current and long-term coastal challenges.”274 Successful adaptation to SLR essentially involves the implementation of a judicious blend of structural and non-structural (“multiple lines of defense strategy”)275 and other measures; with the overwhelming majority aimed at improving the adaptive capacities of coastal communities and enhancing coastal resilience. This can be accomplished through ICZM, and the best possible manifestation of the ICZM approach is through the preparation and implementation of ICZM plans. The primary objective of ICZM is to address ways to reconcile contending claims over scarce coastal resources and to protect the coastal environment. Being a methodology to facilitate the attainment of SCD, the flexible scope of ICZM helps accommodate cognate issues. And given the specter of climate change and SLR, rather than merely providing ways to manage competing uses over the coastal zone and the resources contained therein, to be relevant, future coastal planning, must provide for CCCA. In addition, in cases where feasible, ICZM should also seek to secure mitigation, and promote development in line with social justice and equity. In fact, so critical is the role of ICZM in providing for CCCA that scholars have suggested that “ICZM must become “Adaptive” CZM (ACZM) . . . Since relative sea-level rise of a meter or more is predicted during the coming century as polar glacial ice melts, nations should prioritize developing ACZM policies and practices.”276 To bolster the success of adaptation responses, it is necessary that ICZM be considered in all ongoing and future planning and decision-making programs relating to coastal zones. In the same vein, any effort targeted at SCD that does not consider the effects of climate change and SLR will also not achieve the desired results. Overlaying CCCA measures onto ICZM programs will enable them to reinforce each other. Furthermore, concepts integral to ICZM like, planning, adaptive management, environmental protection, community participation, decentralized decision-making must be applied to CCCA processes. Both CCCA and ICZM seek to ensure that coastal and marine ecosystems 273 Ibid. at 340. 274 Ibid.; see also Adalberto Vallega, Fundamentals of Integrated Coastal Management (Dordrecht: Kluwer Academic Publishers, 1999) at 17. 275 John Lopez et al., Comprehensive Recommendations Supporting the Use of the Multiple Lines of Defense Strategy to Sustain Coastal Louisiana 2008 Report (Version I) (2008) at 28. 276 Nicholas A Robinson, “IUCN as Catalyst for a Law of the Biosphere: Acting Globally and Locally” (2005) 35 Envtl L 249 at 288 (QL).

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function and continue to remain healthy. This is extremely important since functional coastal ecosystems can provide a range of amenities and values, like storm protection, flood mitigation, shoreline stabilization, erosion control, water storage, groundwater recharge, and nutrient and pollutant retention. In light of these benefits, there is growing recognition of the approach, as evident in the attempts by annex-I and non-annex-I countries, including LDCs, who are developing ICZM plans as part of their adaptation programs.277 In this regard, the following observations in AR5 is instructive: [t]he issues for coastal adaptation are not radically different from issues encountered within integrated coastal zone management (ICZM), which offers an enabling environment for adaptation practice . . . Considering climate change in this framework does not mean radical changes to ICZM, because ICZM already emphasizes the integration of coastal issues across sectors and policy domains as well as the long-term perspective . . . ICZM, with its emphasis on integration, is likely to remain a major framework for coastal adaptation.278 In viewing ICZM through a climate change lens, certain important factors or “needs” should be considered. These include: (1) greater emphasis on environmental protection and a greater reliance on nature-based coastal protection strategies and measures; (2) the need to factor in the uncertainty associated with climate change impacts on coastal zones; (3) the need for a longer planning horizon;279 (4) the need to augment livelihood opportunities by ensuring equitable and sustainable allocation of coastal resources to fortify the adaptation capacities of coastal communities; (5) the need to preserve and improve the resilience, productivity and biological diversity of coastal ecosystems so that coastal ecosystems can absorb climate change impacts and support greater economic and livelihood opportunities; and, (6) the need to provide for integrated decision-making through a holistic system that links

277 For instance, NAPA priority project no. 17 titled ‘Development of an Integrated Coastal Zone Management Plan for the Sierra Leone’, seeks to ensure economic development and preservation of ecosystems. Sierra Leone, Sierra Leone Government & UNDP, National Adaptation Programme of Action (NAPA): Final Report (Government of Sierra Leone Ministry of Transport and Aviation, 2007) at 85–86. 278 Fifth Assessment Report, supra note 18 at 33, 35. 279 James Tobey et al., “Practicing Coastal Adaptation to Climate Change: Lessons from Integrated Coastal Management” (2010) 38 Coastal Mgmt 317 at 317.

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multi-purpose management efforts and reduces conflicts associated with sectoral management. CCCA is not solely about building sea walls, climate-proofing, and moving people out of harm’s way. It is also about augmenting the capacities of coastal communities to manage climate-change-related impacts, improving their quality of life, protecting coastal resources, and ensuring that economic development proceeds in a manner that does not jeopardize the resilience of coastal ecosystems. Consequently, there is considerable utility in linking CCCA to an ICZM process. Having both the capacity to make decisions regarding CZM and the resources to do so through ICZM constitutes a firm foundational response to the consequences of SLR.280 5.7 Conclusion ICZM was developed as the plausible functional response to re-invigorate and re-negotiate the way in which we manage our coasts, and to provide substance and form to the concept of SCD. It offers practical tools by which to forge an appropriate balance between competing coastal uses and demands to create synergetic and positive relationships between the myriad of players and sub-sectors that have stakes in the coastal zone. Traditional sectoral coastal management responses have not always provided a comprehensive package of solutions that are sufficiently inter-linked and, consequently, have not been able to prevent or even slow coastal degradation. From a functional perspective, ICZM seeks to re-orient, re-work and link the divergent multi-dimensional management efforts at play in coastal zones to produce holistic solutions that recognize the zones’ unique features. Additionally, it seeks to create more opportunities for livelihood, to increase the productivity of existing activities, to promote equitable growth, and to improve the resilience of coastal ecosystems. Like a ‘Christmas tree’ with a myriad of decorations, s­everal 280 EC, Proposal for a Directive, supra note 20 at 8, art. 8(2)(f) (stating that ICM strategies are to provide for mitigation and adaptation to climate change). For an overview of the importance of ICZM as an adaptation strategy, see Cambodia, Ministry of Environment, Cambodia’s Initial National Communication under the United Nations Framework Convention on Climate Change (Cambodia: Ministry of Environment, 2002) at 41; Bahrain, Initial Communications to the UNFCCC, supra note 238 at 46; Tanzania, Vice President’s Office, Initial National Communication under the United Nations Framework Convention on Climate Change (UNFCCC) (Tanzania: Vice President’s Office, 2003) at 45; Egypt, Egypt Second National Communication, supra note 214 at 89; Seychelles, Initial National Communication, supra note 232 at 88.

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courses of action with diverse goals and objectives can all hang together in an ICZM program. ICZM offers an efficacious approach that can dovetail land use planningbased climate change adaptation and other measures with its own repertoire to address the problems posed by SLR, other climate change impacts, and coastal degradation more effectively and holistically. Adherence to such an approach is needed not only to save coastal communities from impending catastrophes but, more importantly, to offer its several low-hanging fruits to be utilized to promote the welfare of coastal communities. As pointed out, hard armoring against coastal degradation is a myopic fix. Designing adaptive responses that do not take into account the need for an integrated approach will also considerably reduce chances of success. A workable solution is a scheme for ICZM implementation that harmonizes with, and integrates CCCA. Of course, doing this does not allow us to continue with a ‘business as usual’ approach of emitting more GHGs. It should rather encourage as to aim for stricter mitigation if we want to make perceptible changes on the ground. In building this architecture for ICZM, laws and legal frameworks play an important role. An enabling legislative environment provides the imprimatur to work an ICZM program that encompasses within its fold CCCA as well. It can also help us move towards a more sustainable pattern of coastal development by setting out the parameters for the exercise of rights and the observance of duties by stakeholders. These aspects are dealt with in the next part.

Part 3 The Legal Framework for Sustainable Coastal Development

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This part addresses the role that coastal laws can play in facilitating ICZM implementation in South Asia to promote CCCA. It explores how dedicated coastal law statutes can facilitate ICZM implementation by balancing coastal development, coastal environment protection, CCCA and mitigation. It also offers relevant information to help in the identification of essential legal principles that can inform coastal law development and reform, particularly from the perspective of implementing CCCA for South Asia. Divided into two chapters, the first, chapter six, outlines the development of ICZM at the international level, and discusses some examples of national experiences in legislating ICZM and adaptation to sea level rise. The discussion shows that there is a heterogeneous range of conceptions of how linkages can be established between ICZM programs and CCCA through the legislative route. Chapter seven carries the analysis forward by proposing a theoretical justification for coastal zone management law and through a SWOT analysis, it offers a case for coastal management legislation to underpin and support the ICZM process and to build CCCA into an ICZM program. Drawing on historical antecedents, it forecasts the core issues ICZM law must address and support in future implementation of CCCA measures.

chapter 6

Coastal Law, ICZM and Adapting to Sea Level Rise 6.1 Introduction Since the 1992 Rio Earth Summit, ICZM has widely been touted as a panacea to most of the problems that endanger the sustainable development of coastal areas, resources and communities.1 As discussed earlier in this book, ICZM transcends the conventional silo-based coastal management approaches that lead to stakeholders working at cross-purposes. Instead, ICZM brings together interested and affected constituencies to make decisions to promote inclusive coastal management programs. The impressive increase of ICZM programs2 shows their steady overtaking of traditional institutional management frameworks for coastal governance.3 All the same, in most coastal nations, expanding coastal areas and littoral environments are fast deteriorating.4 The raisons d’être for the inability of ICZM to stem this tide can be traced, among others, to the lack of appropriate legislative support. Though lawmaking only lays down a normative framework, a dedicated coastal legislation can play a vital role in promoting and sustaining an effective ICZM process. The legal problems that implementation of ICZM and coastal climate change adaptation (CCCA) bring with them have no across-the-board solutions. Likewise, the implementation of the three broad adaptation responses to sea level rise (SLR), accommodation, retreat, and protection, also involves substantial legal questions. Problems can arise in relation to retreat5 and resettlement,6 construction of coastal protection and other structures, their 1 Nicholas A. Robinson, ed., Agenda 21 & The UNCED Proceedings, vol. 4, 3rd series, International Protection of the Environment (New York: Oceana Publications, Inc, 1993) at 307, ch. 17, ¶17.3. 2 Jens Sorensen, Baseline 2000 Background Report: The Status of Integrated Coastal Management as an International Practice, Coastal Zone Canada Association, Baseline 2000 (2nd Iteration, 2002) at 3–1. 3 Ibid. 4 UNGA, Oceans and the Law of the Sea: Report of the Secretary General: Addendum, A/59/62/ Add.1, 29 (18 August 2004) ¶97. 5 Severance v Patterson, 2010 Tex LEXIS 854 (Tex, 2010); Severance v Patterson, 2011 Tex LEXIS 779 (Tex, 2011); Severance v Patterson, 2012 Tex LEXIS 260 (Tex, 2012). 6 Coastal communities forced to resettle may litigate to recover damages from those who have contributed to the problem of GHG emissions. Native Village of Kivalina v ExxonMobil

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subsequent failure and ensuing issues of liability,7 expropriation of private property,8 etc., and they may require adjudicative intervention. The “anticlimactic”9 decision of the United States (US) Supreme Court in David H. Lucas v. South Carolina Coastal Council10 involving an interpretation of the takings clause demonstrates that even such intervention may have unsatisfactory outcomes.11 As well, fundamental precepts of common law detailing rights enjoyed by littoral property owners (e.g., the right to use, access, an unobstructed view of the water, and the right to receive accretions and relictions to the littoral property), may require modifications, particularly to facilitate

Corp, 663 F Supp (2d) 863 (ND Cal, 2009); J. Peter Byrne & Jessica Grannis, “Coastal Retreat Measures” in Michael B. Gerrard & Katrina Fischer Kuh eds., The Law of Adaptation to Climate Change: U.S. and International Aspects (Illinois: American Bar Association, 2012) 267 at 295. 7 Avenal v State, 2004 La LEXIS 2984 (La SC, 2004) (dealing with the issues of liability due to the construction of freshwater diversion structures and the consequent destruction of oyster grounds); In re Katrina Canal Breaches Consol Litigation, 647 F Supp (2d) 644 (ED La, 2009); In Re Katrina Canal Breaches Litigation, 673 F (3d) 381 (5th Cir 2012); In Re: Katrina Canal Breaches Litigation, 696 F (3d) 436 (5th Cir 2012) (dealing with the issue of state liability consequent to the breaching of levees following Hurricane Katarina); Byron Shire Council v Vaughan, Vaughan v Byron Shire Council, (2009), [2009] NSWLEC 88 and (No. 2) [2009] NSWLEC 110 (injuncting the construction of rock riprap on the ground that if done in isolation, this work would adversely impact neighboring properties). 8 Land acquisition is an essential tool for effective coastal area management and should be integrated into coastal management systems. David Owens, “Land Acquisition and Coastal Resource Management: A Pragmatic Perspective” (1983) 24:4 Wm & Mary L Rev 625 at 630 (HeinOnline). 9 See generally Richard A Epstein, “Lucas v South Carolina Coastal Council: A Tangled Web of Expectations” (1993) 45 Stan L Rev 1369 (QL). 10 David H. Lucas v South Carolina Coastal Council, 505 US 1003 (1992) (following the implementation of the Beachfront Management Act, Lucas was barred from building permanent habitable structures on his lots and the question was whether this constituted a taking. The US Supreme Court directed payment of compensation on the ground that any regulation that deprives a property owner of “economically viable uses of his land” is a regulatory taking, that requires just compensation). 11 The Lucas decision has far-reaching implications for coastal climate change adaptation responses, raising more questions than providing answers. Ibid.; see also Pat A Cerundolo, “The Limited Impact of Lucas v. South Carolina Coastal Council on Massachusetts Regulatory Takings Jurisprudence”, Comment, (1998) 25:2 BC Envtl Aff L Rev 431 at 484 (HeinOnline); Dana Beach & Kim Diana Connolly, “A Retrospective on Lucas v. South Carolina Coastal Council: Public Policy Implications for the 21st Century” (2003) 12:1 Se Envtl LJ 1 at 14 (HeinOnline).

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coastal adaptation programs like beach restoration and nourishment.12 As sea levels rise, it may become necessary to remove and relocate people and investments from hazard-prone to safer areas. In implementing a retreat strategy, a government may have to acquire coastal land and proscribe private development, or impose restrictions on the bundle of property rights, in exchange for compensation. Since the number of claimants may run into millions, the fiscal consequences of such an exercise can be severe for government coffers, fundamentally restricting its ability to implement retreat. As the law stands in some South Asian coastal countries, expropriation of private property is a highly contested legal issue, and attempts by national governments to acquire private property have generally been frowned upon.13 Given the universality of SLR and climate change, coastal law reform will be an issue that will confront most coastal countries. Already, in acknowledgement of the impending dangers posed by a degraded coastal environment and rising seas, coastal law reform has begun in several countries. New coastal law regimes are being developed and existing ones refurbished to enable more effective implementation of programs for sustainable coastal management. 12

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The city of Destin and Walton County applied for permits to restore an eroded beach by depositing dredged sand. Under Florida’s Beach and Shore Preservation Act, 1961, once a beach restoration project “is determined to be undertaken,” the concerned board determines “an erosion control line” which replaces the fluctuating mean high-water line, which was till then treated as the ordinary boundary between private beach-front and state-owned land. Under common law, the littoral owner takes title to accreted land. However, once an erosion-control line is recorded, the common law ceases to increase upland property by accretion. This was challenged by Stop the Beach Renourishment, Inc. The matter finally reached the US Supreme Court, which held that the Florida law did not guarantee littoral property owners water contact and even if Florida law guarantees littoral property owners an interest in accreted sand, it was subordinate to the right of the state to fill-in the submerged land and make use of the same. Stop the Beach Renourishment, Inc v Florida Dep’t of Environmental Protection (2010) USSC 08–1151, 130 S Ct 2592 (2010) at 26. “[T]here are a plethora of unresolved legal issues that can serve to derail the reliance on beach restoration as a sea level rise adaptation strategy.” Donna R. Christie, “Sea Level Rise and Gulf Beaches: The Specter of Judicial Takings” (2011) 26:2 J Land Use & Envtl L 313 at 327 (HeinOnline). For instance, in India alone, it is reported that in the 60 years following India’s independence, 60 million have been displaced due to development projects. Kate Hoshour & ­Jennifer Kalafut, “A Growing Global Crisis Development-Induced Displacement & Resettlement”, Issue Paper (San Francisco: International Accountability Project, 2007) at 1. Relief and rehabilitation has been tardy. To rectify this, India recently replaced its antiquated Land Acquisition Act, 1894, with the Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013. (No. 30 of 2013, India).

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This chapter discusses what principles should inform coastal law making for coastal management and CCCA implementation in South Asia. It explores a number of national and sub-national coastal management laws as available in a few coastal countries and sets out the salience of the prescriptive details of these legislations. This analysis is set against the backdrop of an overview of international environmental law on ICZM. International environmental law sets common standards, which are often reflected in national legislations and programs. The various national examples discussed illustrate the diverse and innovative ways in which the instrumentality of law can be employed to further ICZM implementation and CCCA. Some of these legislations are considerably mature in harmonizing ICZM with CCCA, while others are rudimentary in this regard. The discussion of each of the case studies concludes with a brief commentary on the features of its legal framework, the challenges that may be faced in applying it to the demands of ICZM and CCCA, and what lessons it may offer to coastal South Asia towards the development of national coastal laws and an ICZM legal framework for the region. 6.2

International Environmental Law and Integrated Coastal Zone Management

The importance of the coast as an invaluable piece of real estate is now the growing focus of international environmental law.14 In fact, the need to give special protection to the coastal environment was first highlighted at the 1972 Stockholm Conference.15 Its Declaration and Action Plan on the Human Environment calls upon states to “adopt an integrated and coordinated approach to their development planning. . . .”16 In the same year, the US Congress passed the pioneering Coastal Zone Management Act, 1972 (CZMA, 1972), which is the first major coastal law in the world that calls upon coastal states to develop and implement coastal zone management plans.17 But the seminal recognition of the need for integrated management in the ocean law context traces to the 1982 United Nations Convention on the Law of 14 15 16 17

The focus in this part is on multilateral international agreements that have a global focus. Incidentally, the United States enacted the Federal Coastal Zone Management Act in the same year. For more discussion on this development, see below. Declaration of the United Nations Conference on the Human Environment, 16 June 1972, 11:6 ILM 1416, prin 13. Coastal Zone Management Act of 1972, Pub L No. 109–58 (codified as amended at 16 USC §1451–1465 (2005)) [USCZMA].

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the Sea (LOSC).18 Though not articulated in precise terms, several provisions in the LOSC can be interpreted as requiring ICZM. For instance, the preamble to the LOSC proclaims the principle of integration and the unity of the oceans in the following words: “the problems of ocean space are closely inter-related and need to be considered as a whole.”19 In addition, the scheme regarding demarcation of maritime zones, and part XII, which spells out state responsibility for protection, and preservation of the marine environment, are relevant in articulating state responsibility for the development of ICZM programs.20 The focus on environmental protection gave way to the 1987 Brundtland Report’s broader goal of sustainable development that emphasize the integrated nature of environmental protection and economic development. This shift in perspective calls attention to institutionalizing ICZM programs as well. The Brundtland report also pointed to assisting developing countries “to strengthen their legal and institutional frameworks needed for integrated management of coastal resources.”21 The 1992 United Nations Conference on Environment and Development (UNCED) at Rio entrenched sustainable development and emphasized the relevance of ICZM principles to ocean and coastal governance.22 UNCED’s Agenda 21, Chapter 17 devoted to protection of oceans, and their living resources, also asks “[c]oastal States [to] commit themselves to integrated management and sustainable development of coastal areas and the marine environment under their national jurisdiction,”23 and to make contingency plans to respond to climate change and SLR.24 The UNCED also produced two conventions that highlight the ICZM imperative. The first is the United Nations Framework Convention on Climate Change, 1992, calls upon parties to “develop and elaborate appropriate and integrated 18

United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397, 21 ILM 1261 (entered into force 16 November 1994). 19 Ibid. 20 Matthew Heemskerk, “National Efforts at Integrated Coastal Zone Management: The Canadian, Australian and New Zealand Experiences”, Notes, (2001) 10 Dal J Leg Stud 158 (HeinOnline). 21 World Commission on Environment & Development, Our Common Future (Oxford: Oxford University Press, 1987) at 266. 22 United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, 14 June 1992, 31:4 ILM 874. 23 It identifies 14 specific management related activities for the coastal areas. Robinson, ed., supra note 1 at 310–11, ch. 17, ¶17.6(a)–(n). 24 Ibid., ¶17(6)(e). As well, Chapter 12 of Agenda 21, which deals with the management of fragile ecosystems, defines the term to include wetlands, small islands and certain coastal areas and is accordingly relevant to an ICZM process. See also ibid. at 184, ch. 12, ¶12.1.

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plans for coastal zone management.”25 This is perhaps the only hard law instrument that expressly recognizes ICZM and its value as a necessary adaptive tool to meet the challenges posed by climate change and SLR. Integrated marine and coastal area management approaches are also recognized as the most efficient tools to implement the provisions of the Convention on Biological Diversity, 1992, (CBD), the second UNCED convention, whose objective inter alia is “the conservation and sustainable use of marine and coastal biodiversity.”26 Though the CBD text does not specifically address ICZM, it spurred the Jakarta Mandate on Marine and Coastal Biodiversity, which is essentially a program of action for coastal and marine management through an integrated approach.27 The influence of Chapter 17 of Agenda 21 fostered an intergovernmental conference in Washington, 1995, that agreed on the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities,28 and the Washington Declaration,29 both of which affirm the utility of ICZM. As well, the 2012 “Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities” emphasizes “integrated watershed and coastal management . . . to achieve the effective sustainable management of landbased activities.”30 Again, Chapter 17 impelled the Global Conference on Sustainable Development of Small Island Developing States in Barbados 25

United Nations Conference on Environment and Development: Framework Convention on Climate Change, 19 June 1993, 31 ILM 849 (adopted at New York 9 May 1992), art. 4(1)(e); see also Protocol on Integrated Coastal Zone Management in the Mediterranean, [2009] OJ L 34/19, pmbl. 26 AIDEnvironment, National Institute for Coastal and Marine Management/Rijksinstituut voor Kust en Zee (RIKZ), Coastal Zone Management Centre, Integrated Marine and Coastal Area Management (IMCAM) Approaches for Implementing the Convention on Biological Diversity, CBD Technical Series No. 14 (Montreal: Secretariat of the Convention on Biological Diversity, 2004) at 3. 27 COP 2 Decision II/10, Conservation and Sustainable Use of Marine and Coastal Biological Diversity, ¶¶ 2–3, online: Convention on Biological Diversity, Decisions, COP 2 Decisions . 28 UNEP, Intergovernmental Conference to Adopt a Global Programme of Action for the Protection of the Marine Environment from Landbased Activities, Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, UNEP(OCA)/LBA/IG.2/7 (5 December 1995). 29 Declaration on the Protection of the Marine Environment from Landbased Activities (Washington), 23 Ocotber-3 November 1995, 6 RECIEL, 883. 30 UNEPGC, Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities: Note by the Executive Director, UNEP/GCSS.XII/INF/10 (9 February 2012).

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in 1994, which concluded a comprehensive “Programme of Action for the Sustainable Development of Small Island Developing States,” whose activity leitmotif is ICZM.31 ICZM has been identified in numerous other international agreements as being key to sustainable development of coastal areas and resources. First, under the Ramsar Convention, most coastal zones would be considered wetlands,32 and coastal wetlands are central objects for the problems posed to coastal areas by SLR.33 The various Conferences of Parties to the Ramsar Convention acknowledge its relevance to ICZM.34 The goal of the Ramsar Strategic Plan 2009–2015 is the “wise use of all wetlands” whose significance in coastal protection and in ICZM it recognizes.35 The “Principles and guidelines for incorporating wetland issues into Integrated Coastal Zone Management” is definitely the most pertinent acknowledgement of ICZM by the Ramsar regime.36 Other key instruments pertinent to ICZM development and implementation are the Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997;37 the Bonn Convention on the Conservation of Migratory Species of Wild Animals,

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“Annex II: Programme of Action for the Sustainable Development of Small Island Developing States” in UN, Report of the Global Conference on the Sustainable Development of Small Island Developing States, Global Conference on the Sustainable Development of Small Island Developing States, A/CONF.167/9 (6 May 1994). 32 Wetlands include areas “. . . with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres.” Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 245, 11 ILM 963 (entered into force 21 December 1975), art. 1. 33 Conference of the Contracting Parties, The Changwon Declaration on Human Well-being and Wetlands, Res X.3, Ramsar, 10th Mtg, (2008) at 4; see generally Conference of the Contracting Parties, Res VIII.3: Climate Change and Wetlands: Impacts, Adaptation, and Mitigation, Res VIII.3, Ramsar, 8th Mtg, (2002). 34 Even though the Ramsar Convention text does not directly refer to ICZM, some of the COP decisions provide guidance to parties for ICZM implementation. 35 See Ramsar Convention Secretariat, The Ramsar Strategic Plan 2009–2015: Goals, Strategies, and Expectations for the Ramsar Convention’s Implementation for the Period 2009 to 2015, 4th ed., Ramsar Handbooks for the Wise Use of Wetlands, vol. 21 (Gland: Ramsar Convention Secretariat, 2010) at 14, strategy 1.4. 36 “Annex: Principles and Guidelines for Incorporating Wetland Issues into Integrated Coastal Zone Management (ICZM)” in Conference of the Contracting Parties, Wetland Issues in Integrated Coastal Zone Management (ICZM), Res VIII.4, Ramsar, 8th Mtg, (2002) 5. 37 21 May 1997, 36 ILM 700, arts. 20, 23. Both articles can be interpreted to impose obligations upon watercourse states to protect coastal ecosystems, such as, deltas and estuaries.

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1979;38 the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995;39 and the Convention for the Protection of the World Cultural and Natural Heritage, 1972.40 Even the marine environmental protection instruments that emanate from the International Maritime Organization can indirectly support objectives central to ICZM implementation.41 There are also several soft law instruments that stress the importance of the integrated approach. The FAO Code of Conduct for Responsible Fisheries, 38 39

40

41

See generally Convention on the Conservation of Migratory Species of Wild Animals (Bonn), 23 June 1979, 19 ILM 15 (entered into force 1 November 1983). Avoidance of adverse impacts on the marine environment, preservation of biodiversity, maintaining the integrity of marine ecosystems and minimizing the risks of long-term or irreversible effects of fishing operations are recurring themes. UNGA, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, A/CONF 164/37, 8 September 1995, 34 ILM 1542 (entered into force 11 December 2001). Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151, 11 ILM 1358 (entered into force 17 December 1975), arts. 2, 3, 4, 8, 11(2), 11(4), 13(1) & 22; World Heritage List, online: UNESCO ; UNESCO World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention, WHC.12/01 (Paris: Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, 2012) ¶236. Some of the prominent ones are: International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969; International Convention on Civil Liability for Oil Pollution Damage 1969; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971; London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972; International Convention for the Prevention of Pollution from Ships, 1973/78 (MARPOL); International Convention for the Safety of Life at Sea, 1974; International Convention on Salvage, 1989; International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990; International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996. See also Special Areas under MARPOL, online: IMO, Our Work, Marine Environment, Pollution Prevention, Special Areas Under MARPOL ; IMO, Resolution A.982(24) Adopted on 1 December 2005(Agenda item 11) Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, 24th Sess., A 24/Res 982 (6 February 2006). For further details, see Particularly Sensitive Sea Areas, online: IMO, Home, Our Work, Marine Environment, Pollution Prevention, Particularly Sensitive Sea Areas .

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1995, in article 10, emphasizes the need to integrate fisheries into coastal area management through the use of ICZM.42 In its Johannesburg Plan of Implementation, the World Summit on Sustainable Development emphasized the integrated nature of problems posed by ocean space.43 Accordingly, to ensure the sustainable development of the oceans, the Plan of Implementation identifies “integrated coastal management” and “integrated coastal area management plans” as imperative.44 The Ministers and heads of delegations who met at the World Ocean Conference at Manado in 2009 to deliberate on the effects of climate change on the ocean and related threats, in the Manado Ocean Declaration, re-affirmed the importance of integrated coastal and ocean management in promoting resilience fundamental to climate change adaptation.45 The Declaration demands sound policies developed on the basis of reliable scientific assessments and internationally agreed goals.46 Again, at the recently concluded Rio+20, held 20 years after the Rio Earth Summit, the importance of integrated approaches was reiterated.47 The preceding copious acknowledgement of ICZM in international environmental and ocean law does not, however, identify its elements or the methodologies by which it can be utilized to address the various socioeconomic, environmental and political concerns that inform a nation’s coastal management strategy. It also does not explain how such a process should be implemented as a program.48 Consequently, a number of international bodies have sought to interpret, clarify and refine the ICZM concept. Prominent are the guidelines issued by the Food and Agriculture Organization, the World Coast Conference, the World Bank, International Union for Conservation of Nature, Organisation for Economic Co-operation and Development, and the

42 FAO, Code of Conduct for Responsible Fisheries (Rome: FAO, 1995) arts. 10 & 6.9. 43 “Plan of Implementation of the World Summit on Sustainable Development” in UN, Report of the World Summit on Sustainable Development at 22, ¶30. 44 Ibid., ¶30(e), (g). 45 Manado Ocean Declaration, 14 May 2009, online: NOAA Office of General Counsel . 46 Ibid., ¶7. 47 UN RIO+20 United Nations Conference on Sustainable Development, The Future We Want, A/CONF.216/L.1*, 19 June 2012, ¶40. 48 Biliana Cicin-Sain, Robert W. Knecht & Gregory W. Fisk, “Growth in Capacity for Integrated Coastal Management Since UNCED: An International Perspective” (1995) 29:1–3 Ocean & Coast Mgmt 93 at 102 (ScienceDirect).

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United Nations Environment Programme, which set standards and principles to guide ICZM development by states.49 6.2.1 Remarks Two decades have elapsed since the Rio Earth Summit ushered ICZM to the centre stage of coastal zone management efforts. Since its official inauguration, ICZM has been emphasized and recognized in innumerable multilateral instruments that deal with marine environment protection and conservation. Despite these successive iterations, and the coastal countries of South Asia being parties to most of these international environmental law instruments, ICZM remains largely rooted in the countries of this region as a set of diverse pilot and demonstration projects. There is tardiness and the national governments in South Asia have floundered in translating the growing body of international environmental law that can trigger obligations in respect of implementing ICZM. A primary reason for this situation is that international environmental law relevant to ICZM is set at two levels. The first are the core legal instruments directly relevant to ICZM implementation like the UNFCCC, the CBD, the Ramsar Convention, the Watercourses Convention, while the remaining ones like the LOSC, the Bonn Convention, the World Heritage Convention and the marine environment protection instruments of the IMO have only peripheral value. In the case of the latter, these instruments prescribe a range of tools that are not necessarily ICZM intended, but can play supportive roles in triggering obligations for coastal management. As well, the generality of the rules of international environmental law makes them weak and often vague. Again the preponderance of ICZM prescriptions at the international environmental level remains within the realm of soft-law instruments that are hortatory in nature and entail no obligation of adherence; therefore, their normative scope is limited, since implementation is voluntary. Moreover, most of the above-referred international instruments were developed at a time when climate change and 49

See generally John R. Clark, Integrated Management of Coastal Zones, FAO Fisheries Technical Paper, No. 327 (Rome: FAO, 1992) at 581; Jan C. Post & Carl G. Lundin, eds., Guidelines for Integrated Coastal Zone Management, Environmentally Sustainable Development Studies and Monographs Series No. 9 (Washington, DC: The World Bank, 1996); OECD, Recommendation of the Council on Integrated Coastal Zone Management, C(92)114/FINAL (23 July 1992). Acclaimed ICZM practitioners Biliana Cicin-Sain and Robert W. Knecht in analysing these five sets of guidelines have distilled what they term “consensus guidelines” which provide “a reasonable characterization of the ICM concept as it is understood today.” Cicin-Sain, Knecht & Fisk, ibid. at 103.

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SLR were not issues of concern and therefore the stipulations that they prescribe are incapable of responding to these new challenges. There is as yet no global convention or international body on ICZM that lays down binding and specific rules of the practice. In other words, there is an absence of an exclusive hard-law treaty on ICZM that offers a template to guide its implementation. The lack of such a specific hard-law instrument poses considerable challenges in integrating the different resource management sectors and in implementing ecosystem-based approaches to coastal management at national levels. This has led to considerable tension and conflicting claims among resource users. In this regard, one of the primary suggestions of the Coastal Zone Management Subgroup of the Intergovernmental Panel on Climate Change in its “Suggested Ten-Year Timeline for the Implementation of Comprehensive Coastal Zone Management Plans”50 was a recommendation calling for the adoption of a protocol by 1992 to “provide a framework for international and multinational cooperation in dealing with the full range of concerns related to impacts of sea level rise and climate change impacts on the coastal zone.”51 However, thus far, nothing has been achieved in this regard. In the absence of such a firm normative beacon from an international ICZM treaty, and the prospects for the development of such an instrument in the immediate future bleak, what lessons can South Asian coastal states learn from coastal states in other regions that have coastal laws on ICZM schemes? This aspect is explored in the next section. 6.3

Integrated Coastal Zone Management and Adapting to Sea Level Rise through Coastal Law: Selected National Experiences

Several coastal states have responded to the problems of coastal development and management by implementing ICZM through coastal laws that are essentially rooted in national circumstances. Some of these countries have federal, and others have unitary systems of government. Salient features of these national legislative experiences are explained below to demonstrate the growing importance of law in supporting ICZM, and the potential for their utilization to respond to SLR and other climate change impacts. The principles they offer for coastal law making are drawn upon in part IV to inform recommendations for coastal law reform for South Asia. 50 Intergovernmental Panel on Climate Change, Climate Change: The IPCC Response Strategies (Washington DC: Island Press, 1991) at 141. 51 Ibid. at 139, 140.

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It is probably common knowledge that a federal state is one where a constitution (usually a written one), divides sovereignty (in terms of powers, jurisdiction, and revenue) between two or more autonomous governing authorities at the national and subnational (state and sometimes even at the municipal or village) levels. Depending on the constitutional scheme, both national and subnational levels of government may exercise jurisdiction over various matters within the narrow band of land and water at the coast. The federal regimes discussed as case studies are the United States, Australia, Canada and South Africa. In regard to unitary states, the entire country is treated as one unit for governance purposes and, generally governance is entrusted to one central entity. Subnational authorities in a unitary state usually exercise only such administrative powers as the central government delegates to them. The unitary jurisdictions considered are New Zealand, Belize, Barbados, Cuba, Kenya, and the United Kingdom (UK). The discussion itself closely analyzes the legislative experiences of the US with its considerable experience on ICZM and its federal structure;52 Australia, whose federal regime also pays special attention to the protection of aboriginal rights;53 South Africa which has a comparatively new coastal law focused on ICZM;54 and New Zealand, a unitary state whose approach to coastal management is arranged under a broader sustainable resources management process.55 Thereafter, it offers a synoptic overview on the ICZM and CCCA legislative experiences of federal Canada, and the unitary states of Cuba, Kenya, Belize, Barbados, Israel, and the UK. All the jurisdictions studied span the spectrum of high, medium and low-income countries. Each represents unique coastal features and circumstances, and they exhibit diverse and innovative approaches in the use of legal mechanisms to facilitate ICZM and CCCA implementation. Coastal Zone Management and Coastal Climate Change Adaptation in the United States Coastal zones and resources are critically important to the US, because they support a large percentage of the American population and economy. The National Oceanic and Atmospheric Administration (NOAA) points out that, in 2010, over 123 million people, or 39 per cent of the US population, lived in 6.3.1

52 53 54 55

USCZMA, supra note 17. See generally Rachel Baird & Donald R. Rothwell, eds., Australian Coastal and Marine Law (Sydney: The Federation Press, 2011). National Environmental Management: Integrated Coastal Management Act, (S Afr), No. 24 of 2008 [SA, Integrated Coastal Management Act]. See generally Resource Management Act 1991 (NZ), 1991/69 [NZRMA].

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coastal shoreline communities.56 The coasts also provide a number of valuable services, like storm protection, and the annual worth of these services is around USD23 billion.57 It is also reported that in 2011, the coastal counties accounted for nearly half of the US’s gross domestic product, generating 51 million jobs.58 Nevertheless, though the US has strong laws, management systems and progressive institutions, its coastlines are showing clear signs of increasing degradation and nearly 166 dead zones have been identified.59 While the annual net benefit to the US economy from goods and services provided by coral reefs is USD1 billion, 75 per cent of the coral resources in the Atlantic, Caribbean and Gulf of Mexico are in poor or fair health.60 Invasive species continue to spread,61 wetlands are under threat from coastal development,62 and oil spills wreak havoc on the coastal and marine environments.63 These management challenges are now compounded by climate change and rising sea levels.64 56

US, National Oceanic and Atmospheric Administration & US Census Bureau, National Coastal Population Report: Population Trends from 1970 to 2020, NOAA State of the Coast Report Series (np: National Oceanic and Atmospheric Administration, 2013) at 4. 57 US, NOAA Office of Ocean and Coastal Resource Management, Adapting to Climate Change: A Planning Guide for State Coastal Managers (Silver Spring, MD: National Oceanic and Atmospheric Administration, 2010) at 6. 58 National Oceanic and Atmospheric Administration, Economy: The Coast—Our Nation’s Economic Engine, online: National Oceanic and Atmospheric Administration, Coastal Eco­ nomy . 59 National Oceanic and Atmospheric Administration, Ecosystems: Nutrient Pollution and Hypoxia—Everything is Upstream of the Coast, online: National Oceanic and Atmospheric Administration, Ecosystems . 60 National Oceanic and Atmospheric Administration, Ecosystems: Coral Reef Ecosystems— Critical Coastal Habitat, online: National Oceanic and Atmospheric Administration, Ecosystems, Cora Reef . 61 In The Great Lakes, nearly 185 non-native aquatic species have been established. From 2000–2010, the economic loss suffered by this region due to the invasive Zebra mussels is about USD5 billion. National Oceanic and Atmospheric Administration, Ecosystems: Invasive Species Disrupt Coastal Ecosystems and Economies, online: National Oceanic and Atmospheric Administration, Ecosystems . 62 National Oceanic and Atmospheric Administration, Ecosystems: Wetlands—Critical Coastal Habitat, online: National Oceanic and Atmospheric Administration, Ecosystems, Wetlands . 63 For the chronology of the accident, see BP (Firm), Deepwater Horizon Accident Investigation Report (Houston: BP, 2010) at 21–29. 64 National Oceanic and Atmospheric Administration, Climate: Vulnerability of Our Nation’s Coasts to Sea Level Rise, online: National Oceanic and Atmospheric Administration, Climate, Coastal Vulnerability ; see also James E.

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As discussed, CCCA responses fall into the three broad categories of retreat, accommodate and protect. In implementing these measures in the US, a raft of legislations, executive orders and coastal management programs that emanate from the local, state, and federal levels of government are relevant.65 As well, an assortment of tools, such as land-use planning, property takings, rolling easements and public trust mechanisms has been refashioned to regulate coastal development and facilitate CCCA.66 A coastal law regime, at the apex of which is the Federal CZMA, 1972, structures the scheme. Before the emergence of the CZMA, 1972, there had been conflicts between the federal and state governments in the US regarding jurisdiction over offshore waters.67 The discovery of offshore mineral resources accentuated the acrimony, leading to several rounds of litigation and legislative battles that finally culminated in the Submerged Lands Act, 1953.68 This law granted the states jurisdiction over activities up to three nautical miles offshore,69 an extremely important legal development from the perspective of ICZM implementation. States that had jurisdiction over the dry segment of the coastal zone were no longer handicapped in exercising jurisdiction over the wet side of the coastal zone, and could thereby facilitate and implement spatial integration. The discussion that follows first analyzes the prescriptive rules of the CZMA, 1972, especially as to how it provides a basis for coastal zone management programs (CZMP) that can support CCCA. Second, the coastal man-

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66 67 68 69

Neumann et al., Sea-level Rise & Global Climate Change: A Review of Impacts to U.S. Coasts (np: Pew Center on Global Climate Change, 2000). For instance, see South Carolina Beachfront Management Act, 1988, SCC tit 48–39 §§250–360; Shoreline Management Act, 1971, Wash RC §90.58 (1971); see also David Lawrence Hankey, “Sections 9 and 10 of the Rivers and Harbors Act of 1899: The Erosion of Administrative Control by Environmental Suits” [1980] Duke LJ (HeinOnline) 170; see also Robert R.M. Verchick & Joel D. Scheraga, “Protecting The Coast” in Michael B. Gerrard & Katrina Fischer Kuh eds., The Law of Adaptation to Climate Change: U.S. and International Aspects (Illinois: American Bar Association, 2012) 235 at 242. For more details, see generally Kristen M. Fletcher, “Managing Coastal Development” in Donald C. Baur, Tim Eichenberg & Michael Sutton, eds., Ocean and Coastal Law and Policy, 1st ed. (Chicago: American Bar Association, 2008) 147 [Fletcher, “Managing”]. For instance, see Avenal, supra note 7 at 23; see also Verchick & Scheraga, ibid. at 254–55. Fletcher, “Managing”, supra note 65 at 150. Submerged Lands Act, 1953, 43 USC §§1301–15 (1952). Ibid., §1312 (the seaward boundary of the coastal state is a line three geographical miles distant from its coast line). However, the seaward boundaries of Florida (in the Gulf of Mexico coast), Texas and Puerto Rico extend to nine nautical miles from the coastline. NOAA, Maritime Zones and Boundaries, online: NOAA

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agement p ­ rograms of California and Texas are considered, followed by a summation of the lessons that the US experience offers for developing omnibus coastal laws in other regions, like South Asia. 6.3.1.1

Cooperative Coastal Federalism under the Coastal Zone Management Act, 1972 The 1969 Stratton Commission report, Our Nation and the Sea, emphasized the need to protect the coastal zones of the US.70 Three years later on 12 October 1972, the US Congress passed the CZMA, 1972. The primary purpose of this legislation is to ensure proper “coordination and cooperation”71 between the federal government and coastal states by encouraging them to prepare and implement CZMP. Though under US federalism, coastal zone management operates at the federal and state levels, the states are the principal implementing agencies.72 Even though participation in the coastal management program (CMP) is voluntary, the CZMA, 1972, outlines nine areas of national concern that must be addressed in the programs, including SLR impacts.73 In fact, the CZMA, 1972, specifically recognizes that “global warming may result in a substantial sea level rise with serious adverse effects in the coastal zone,” and that “coastal states must anticipate and plan for such an occurrence.”74 Accordingly, the CMP must provide for “the management of coastal development to minimize the loss of life and property caused by improper development in flood-prone, storm surge,

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US, Commission on Marine Science, Engineering, and Resources, Our Nation and the Sea: A Plan for National Action: Report (Washington, DC: US Government Printing Office, 1969). USCZMA, supra note 17, §1452 (entitled, “Congressional declaration of policy (Section 303)”). The major reason the states are the principal implementing bodies is that historically and constitutionally in the US, the states have primary jurisdiction over land. “Review of U.S. Ocean and Coastal Law: The Evolution of Ocean Governance Over Three Decades, Appendix 6 to the Final Report” in U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century: Final Report (Washington, DC, 2004) at 20 [“Review of U.S. Ocean and Coastal Law”]; US Dep’t of Commerce, Coastal Zone Management Program Strategic Plan: Improving Management of the Nation’s Coastal Areas FY 2007–2012, at 1 online: US Dep’t of Commerce, Ocean & Coastal Resource Management . USCZMA, supra note 17, §1456b(2). Ibid., §1451(l).

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g­ eological hazard, and erosion-prone areas and in areas likely to be affected by or vulnerable to sea level rise, land subsidence, and saltwater intrusion.”75 The Office of Coastal Resource Management in the NOAA, a branch of the US Department of Commerce, has to review and approve these state-­sponsored programs.76 Doing so is not meant to undermine state authority, but, rather to fortify it by encouraging and assisting them to assume greater planning and regulatory powers and roles in respect of coastal zones and resources that fall within their jurisdiction. Section 1454 authorizes the Secretary of Commerce to provide grants to states to help them in developing their management programs. These grants are available as long as the state incorporates the enumerated requirements found in the statute.77 It is reported that nearly 34 states have approved coastal management programs that addresses a wide range of issues, including coastal hazards and climate change.78 Once NOAA certifies a state’s program, the second level is set in motion. The CZMA, 1972, requires that activities carried out or approved by the federal government must be consistent with the state’s approved program. In other words, there has to be federal consistency based on an “effects test.”79 The federal consistency provisions are often hailed as the “cornerstone of the CZMA program and a primary incentive for states’ participation,” as it provides “states with an important tool to manage coastal uses and resources and to facilitate cooperation and coordination with Federal agencies.”80 6.3.1.1.1 Comments The CZMA, 1972, is a product of the “environmental decade,” between the late 1960s and the mid-1970s in the US. It is the key in a package of environmental laws designed to introduce a national focus into natural resources management. In several respects, the CZMA, 1972, is unique, for its objective to streamline coastal management by coastal states through voluntary programs, rather 75 76 77 78

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Ibid., §1452(2)(B). Ibid., §§1454–55. Ibid., §§1456a, 1456b. US, Dep’t of Commerce, Coastal Programs: Partnering with States to Manage Our Coastline online: Dep’t of Commerce, Our Programs, Coastal Management Program . USCZMA, supra note 17, §1456; see also Joseph Romero, “Uncharted Waters: The Expansion of State Regulatory Authority Over Federal Activities and Migratory Resources under the Coastal Zone Management Act” (2008) 56 Naval L. Rev 137 at 144 (HeinOnline); “Review of U.S. Ocean and Coastal Law”, supra note 72 at 21–25. US, Office of Ocean and Coastal Resource Management, Federal Consistency Overview (Maryland: US Department of Commerce, 2009) at 3–4.

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than by establishing mandatory compliance standards. Moreover, unlike other federal environmental laws, the CZMA, 1972, primarily creates a bottom-up and voluntary management approach.81 Its features find expression in the Californian and Texas models on coastal management, and these are succinctly explained below. 6.3.1.2 California California boasts one of United State’s longest coastlines, on which nearly 85 per cent of the state’s population live and work.82 In response to present and looming crisis scenarios, California has enacted separate statutes that create attendant institutional mechanisms to plan for and manage its coastal areas. The California Coastal Program, which was approved by NOAA in 1978, has three segments: the California Coastal Commission which manages development along the California coast; the San Francisco Bay Conservation and Development Commission which has responsibility over the San Francisco Bay; and a third agency, the California Coastal Conservancy, which purchases, protects, restores and enhances coastal resources and provides access to the shore. Legislative support for the program flows from the California Coastal Act, 1976, (California Coastal Act), the McAteer-Petris Act, 1965, and the Suisan Marsh Preservation Act, 1977.83 The analysis below is devoted to an examination of the California Coastal Act. Under this Act, the term ‘coastal zone’ includes land and water segments where the seaward area extends to the outer limit of the state’s jurisdiction. On the landward side, it is generally 1,000 yards inland from the mean high tide line.84 A dexterous piece of coastal legislation, the Act details several normative prescriptions that capture the essence of sustainable coastal development. The law seeks to secure maximum public access and provides for

81 82

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Byrne & Grannis, supra note 6 at 290. US, California Natural Resources Agency, 2009 California Climate Adaptation Strategy: A Report to the Governor of the State of California in Response to Executive Order S-13–2008 (California Natural Resources Agency, [nd]) at 65. Between 1980 and 2003, California’s coastal population increased by 1,179 persons daily to touch a total of 9.9 million people. Ibid. US, Dep’t of Commerce, Ocean and Coastal Management in California: California’s Coastal Program online: Dep’t of Commerce, My State, California . California Coastal Act of 1976, 20 PRC §30103 [Cal CA, 2013].

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­recreational opportunities.85 There are also detailed provisions on protecting the marine environment.86 The California Coastal Act incorporates provisions to deal with the problems posed by climate change and SLR. In particular, the mandate of section 30253 is that new developments must not proceed in a manner that interferes with coastal processes or create or magnify coastal hazards.87 In other words, new development must be sufficiently set back from the shoreline in such a way that hard armoring may not be required in the future.88 Another relevant provision is section 30235, which provides for hard armoring to protect existing structures and public beaches from erosion, even if it alters natural shoreline processes. The highlight of the California Coastal Act is that it provides a decentralized format, and coastal functions are divided between a state and local government partnership (15 counties and 60 cities). The California Coastal Commission is the primary regulatory body entrusted with the implementation of the Act,89 and it has the authority to make decisions regarding permits for coastal development. It also reviews local coastal programs and detailed land use plans prepared by local governments,90 and functions as an appellate authority for the coastal zone management decisions made by these local bodies. The Commission also retains original jurisdiction over activities that take place in areas like tidelands, submerged lands, and public trust lands, as the jurisdiction of local bodies ends at the mean high tide line. In sum, rather than pass special regulations to address SLR, California, like most other states in the US, has modified or adapted current regulatory mechanisms to deal with this problem.91 This, however, is the primary weakness of this approach, with the consequence that the need for concerted action to respond to SLR is fast emerging on other fronts as well. One response mechanism is the Governor’s Executive Order, which directs state agencies to consider a range of SLR scenarios for the years 2050 and 2100 “to assess project vulnerability, reduce expected risks, and increase resiliency 85 86 87 88 89 90 91

Cal Const art. X, §4; ibid., §§30210–14, 30220–24. Cal CA, 2013, ibid., §30230. Ibid., §§30253(b) & 30233. Todd T. Cardiff, “Conflict in the California Coastal Act: Sand and Seawalls” (2001) 38 Cal WL Rev 225 at 226–27 (HeinOnline). Cal CA, 2013, supra note 84, §30330. For more details, see Margaret Elizabeth Peloso, Adapting to Rising Sea Levels (PhD Dissertation, Department of Environment, Duke University, 2010) [unpublished] at 140–42. See generally US, California Coastal Commission, Overview of Sea Level Rise and Some Implications for Coastal California (2011).

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to sea‐level rise.”92 Guidance documents have been developed to inform and assist coastal communities and state agencies in crafting responses to SLR.93 The 2011 Resolution of the California Ocean Protection Council on Sea‐Level Rise, calls upon state agencies and non‐state entities implementing projects or programs based on state funds or on state property to follow the science‐ based recommendations developed by the Coastal and Ocean Resources Working Group for the Climate Action Team.94 Another important feature of the California model is the employment of land-use planning to respond to the problems posed by SLR. 6.3.1.3 Texas With 367 miles of Gulf beaches and more than 3,300 miles of bays and estuaries, Texas has one of the longest coastlines in the United Sates.95 More than one-third of the state’s population and a major chunk of its economic activity (including the petrochemical industry and refining capacity) are situated in the coastal zone.96 Texas also suffers a high rate of coastal erosion, with 64 per cent of its coastline eroding at an average rate of about six feet per year.97 A series of legislations are directly applicable to coastal management, a few of which are discussed below. The Texas legislature responded to the federal CZMA 1972, with the Coastal Public Lands Management Act, 1973 (TCPLMA).98 The TCPLMA calls upon the 92 US, Office of the Governor of the State of California, Executive Order S-13-08 (14 November 2008) ¶5. 93 See generally US, California Emergency Management Agency & California Natural Resources Agency, California Adaptation Planning Guide: Planning for Adaptive Communities (np: 2012); see also US, State of California Sea-Level Rise Guidance Document (March 2013), online: State of California: Ocean Protection Council . 94 See generally California Ocean Protection Council, Resolution of the California Ocean Protection Council on Sea Level Rise (11 March 2011), online: California State Lands Commission . 95 US, Coastal Erosion Planning & Response Act (CEPRA): Report to the 80th Texas Legislature (Austin: Texas General Land Office, 2007) at I. 96 The coastal zone supports 40 per cent of the national petrochemical industry, 25 per cent of the national petroleum-refining capacity, two liquefied natural gas facilities and three of the 10 busiest seaports in the United States. US, A Report to the 82nd Legislature: Coastal Erosion Planning & Response Act (Austin: Texas General Land Office, 2011) at 1. 97 For more details, see generally Texas General Land Office, Coastal Erosion, online: Texas General Land Office, What We Do, Caring for the Coast, Coastal Erosion [TGLO, Coastal Erosion]. 98 NRC §§33.003–33.176 (1973) [TCPLMA].

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Commissioner of the General Land Office (GLO)99 to “develop a continuing comprehensive coastal management program”100 and to act as the lead agency to “coordinate and implement” these programs in cooperation with other state agencies that have duties over coastal matters.101 The TCPLMA also specifies the elements of the coastal management program, which includes an assessment of the effects of shoreline erosion, evaluating ways to control erosion, and restoring areas detrimentally affected by shoreline erosion.102 The importance of public hearings in developing coastal management programs and the need to review and amend them in light of new information or changed circumstances (adaptive management) is also stressed.103 Another important coastal law is the Texas Coastal Coordination Act, 1991 (TCCA),104 which authorizes the commissioner to adopt goals and policies for the coastal management program,105 and establishes a coastal coordination advisory committee.106 In unison with its implementation regulations, the TCCA creates a foundational frame for coastal zone management.107 Accordingly, the Texas Coastal Management Program (TCMP) has been developed, whose purpose is to “improve the management of the state’s coastal resources and to ensure the long-term ecological and economic productivity of the coast.”108 As far as SLR is concerned, the TCMP identifies two “encouragement policies” to address SLR: getting local governments to incorporate sea-level rise into new development, and “sediment bypassing.”109 99

Ibid., §33.004 (2). A major portion of coastal property in Texas is privately owned and as steward of the coastal zone, it is the Texas General Land Office that administers the coastal management regime. Texas General Land Office, Caring for the Coast, online: Texas General Land Office, What We Do, Caring for the Coast . 100 33 TCPLMA, ibid., §33.052(a). 101 Ibid., §33.052(b). 102 Ibid., §33.053. 103 Ibid., §§33.055 & 33.054. 104 33 NRC §201 (1973). 105 Ibid., §33.204 (a). 106 Ibid., §33.2041. 107 31 TAC §§501, 503–506. 108 US, Office of Ocean & Coastal Resource Management, Dep’t of Commerce & State of Texas, Combined Coastal Management Program and Final Environmental Impact Statement for the State of Texas (Office of Ocean & Coastal Resource Management, State of Texas, 1996) at part II I–2. 109 This is to be envisaged in the construction and retrofitting of dams on rivers that flow into the coastal zone, and in structures like jetties and groins, which can disrupt sediment transport to the coast. Ibid. at part II 6–20.

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The NOAA approved the TCMP in 1996, and its management falls with the GLO Coastal Division.110 In addition to the Acts outlined above, other statutes like the Dune Protection Act, 1973,111 the Open Beaches Act, 1959, and the Coastal Erosion Planning and Response Act, 1999,112 are also relevant. A unique feature of the Texas approach in responding to SLR is reliance on “rolling easements.”113 Even though rolling easements are associated with public access, they frequently crop up as a valuable tool to address some of the problems posed by SLR. Rolling easements can encourage the removal of hazardous structures, thereby ensuring public safety and eliminating the possibility of coastal squeeze to prevent the inland migration of coastal ecosystems. However, as part of a strategy for CCCA, it must be pointed out that rolling easements have inherent limitations, as they can only be used in areas where there is plentiful land (like rural areas) to facilitate inland migration.114

110 Ibid. at part II 3–6. 111 For instance, the Dune Protection Act (Dunes Act) protects dunes by providing for a dune protection line and prohibits the destruction of sand dunes within a critical dune area, subjecting the same to a system of permits. 112 This law seeks to provide funding to coastal communities for projects that arrest or slow down the deleterious effects of coastal and shoreline erosion. Generally, beach nourishment, shoreline stabilization, habitat restoration and protection, and dune restoration are some of the areas that qualify for funding. TGLO, Coastal Erosion, supra note 97; Texas General Land Office, The Coastal Erosion Planning and Response Act, online: Texas General Land Office, What We Do, Caring for the Coast, Grants & Funding . 113 Richard J. McLaughlin, “Rolling Easements As a Response to Sea Level Rise in Coastal Texas: Current Status of the Law After Severance v. Patterson” (2011) 26 J Land Use & Envtl L. 365 at 390 (HeinOnline); see JW Luttes v The State of Texas 324 SW 2d 167 (Tex Sup Ct 1958); US, Joint Beach Development Committee, The Beaches and Islands of Texas: A Report to the 57th Legislature (Texas: Joint Beach Development Committee, 1961) at 1; Open Beaches Act, 1959 (TOBA) 61 NRC §61 (1959); ibid., §§61.013(a) & 61.0183; Carol Severance v Jerry Patterson, Commissioner of The Texas General Land Office 345 SW 3d 18 (Tex Sup Ct 2010) (finding that while gradual movements can shift the easement’s boundaries, sudden movements do not). This ratio was severely criticized, leading to a rehearing and a subsequent decision, which practically reiterated the earlier position. See Severance v Patterson, 370 SW 3d 705 (Tex Sup Ct 2012). Severance holds far-reaching implications for coastal climate change adaptation. Val Perkins, “Future of Texas Open Beaches Act Clouded by Supreme Court Decision”, Houston Lawyer 49:6 (May/June 2012) 39 at 41. 114 McLaughlin, ibid.

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6.3.1.4 Remarks This brief overview of the US approach to coastal zone management law making and implementation and its capacity to further CCCA, offers some points to note for coastal South Asia, particularly for the federal states of India and Pakistan. This is because, in India and Pakistan, it is the national federal governments that have jurisdiction and sovereign rights over the different maritime zones measured seaward of the baselines, except in matters relating to fishing in the territorial seas.115 The states in these countries have jurisdiction over the dry side of the coastal zone. However, they lack jurisdiction over maritime waters seaward of the baseline (the wet side of the coastal zone). This significant legal handicap prevents the state governments in India and Pakistan from carrying out spatial integration (land-sea integration). This contrasts with the states in the US, which generally has jurisdiction out to three nautical miles offshore, an authority that has enabled them to undertake spatial integration. As well, since it is required that the US federal program must be consistent with those of the states, the states are able to influence actions that 115 For instance, see Constitution of India 1950, art. 297. It states that all lands, minerals and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the Union and be held for the purposes of the Union. In addition all other resources of the exclusive economic zone of India shall also vest in the Union and be held for the purposes of the Union. Again, article 297(3) provides that the limits of the territorial waters, the continental shelf, the exclusive economic zone, and other maritime zones, of India shall be such as may be specified, from time to time, by or under any law made by Parliament. Entry 57 of List I of the Seventh Schedule to the Constitution of India provides that the Central Government has jurisdiction over fishing and fisheries beyond territorial waters, while Entry 21 of List II, ensures state jurisdiction over fisheries. By implication since Entry 57 of List I, provides that the Central Government has jurisdiction over fishing and fisheries beyond territorial waters, Entry 21 of List II can be read to secure coastal states jurisdiction over matters relating to fishing over territorial waters and nothing more. In addition, there are several other entries that fortify the powers over the Central Government in respect of offshore waters (entries 25 (maritime shipping); 26 (lighthouses); 27 (ports); 28 port quarantine, etc.). In accordance with the powers conferred by article 297(3) the Central Government has enacted the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976. This law by virtue of section 3 (1) secures sovereignty of India over the territorial waters and to the seabed and subsoil underlying, and the airspace over such waters. As far as Pakistan is concerned, section 2(1) of the Territorial Waters and Maritime Zones Act, 1976 secures the sovereignty of Pakistan over its terri­to­ rial waters. Similarly, Entry 36 of the Federal Legislative List of the Fourth Schedule to the Constitution of Pakistan secures to the federal government jurisdiction over Fishing and fisheries beyond territorial waters.

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take place even beyond their three mile jurisdictional remits.116 Secondly, the US legislative model on coastal management is a classic example of coastal cooperative federalism in action. Coastal management operates as a multilayered process in which the federal CZMA, 1972, provides the organizing frame. While it requires the states to prepare coastal management programs and makes federal funding available for the development of these programs, by the federal consistency provision, it is ensured that the federal agencies adhere to a state’s approved coastal plan. This two-tier process ensures practical cooperation under the federal structure of coastal management via a decentralized format. The end goal is that collectively, they address “the broad spectrum of coastal issues identified by the Congress.”117 California’s decentralized approach to coastal management strengthens the stewardship roles shared by the state and local government entities. The striking feature of the model is the development and operation of two separate legal and management regimes within the same state for the bay-shore and ocean shoreline. This is recognition that it is imprudent to prescribe one common management framework, as in Sri Lanka, ignoring diversity of the coastal environment. The Texas model shares similarities with California, and also highlights the potential in utilizing the concept of rolling easements. Despite the dictum in Severance,118 rolling easements can ensure that coastal ecosystems are not lost to coastal squeeze. South Asian coastal states can adopt it via their coastal laws, as a possible strategy to respond to SLR impacts and to ensure continued public access to coastal areas without overlooking private coastal realty interests. 6.3.2 Australia Being the world’s largest island but smallest continent, Australia’s ocean coast extends about 36,000 kilometers through a broad range of climatic zones.119 Its coastal areas are home to a diverse array of sensitive ecosystems and more than 85 per cent of its population, related infrastructure, and economic 116 117 118 119

USCZMA, supra note 17, §1456 (entitled, “Coordination and cooperation (Section 307)”). “Review of U.S. Ocean and Coastal Law”, supra note 72 at 20. See generally supra note 113. Australia, Dep’t of Climate Change, Australia’s Fifth National Communication on Climate Change: A Report Under the United Nations Framework Convention on Climate Change (Australia: Dep’t of Climate Change, 2010) at 17 [Australia’s Fifth National Communication]; Natural Resource Management Ministerial Council, National Cooperative Approach to Integrated Coastal Zone Management: Framework and Implementation Plan (Canberra: Dep’t of Environment & Heritage, 2006) at 6 [NRMMC, National Cooperative Approach].

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activities.120 All the state capitals are located within the coastal zone.121 It is no exaggeration to say that Australia has metamorphosized into a “coastal society.”122 Like most other coastal countries, marine pollution, introduction of invasive species and increasing urbanization are pressing problems along the Australian coastline. Climate change impacts and SLR are issues of growing concern in Australia. Already, seawater intrusion has been reported in several coastal locations in Queensland, South Australia, Victoria and Western Australia, and there is growing reliance on desalination to offset the water woes that confront these regions.123 There is also a real threat that a significant portion of built-up area that borders the shoreline will be inundated in the event of a one-meter rise in sea level.124 Other climate change issues facing the country’s coastal areas include reduced precipitation and reduced run-off to coastal rivers and streams resulting in higher salinity concentrations in estuaries.125 Climate change is also adversely affecting migratory bird species (e.g., heat stress),126 coral reefs (increased sea surface temperatures),127 and mangroves (inundation).128 6.3.2.1 Federalism and Distribution of Powers in the Coastal Zone Politically, Australia is a combination of a constitutional monarchy, a federal state, and a parliamentary democracy. As a federal state, legislative powers in Australia are divided between the Commonwealth and the state or territory governments,129 with residuary powers of legislation granted to the states. If a 120 Australia, Dep’t of Climate and Energy Efficiency, Factsheet, “Climate Change— potential impacts and costs: Queensland” [nd], online: Dep’t of Climate and Energy Efficiency, Impacts of Climate Change, Queensland . 121 Alison Gill et al., “The Challenges of Integrating Tourism into Canadian and Australian Coastal Zone Management” (2003) 26 Dalhousie LJ 85 at 91 (HeinOnline). 122 Australia’s Fifth National Communication, supra note 119 at 111. 123 Australia, State of the Environment 2011 Committee, Australia State of the Environment 2011: Independent Report to the Australian Government Minister for Sustainability, Environment, Water, Population and Communities (Canberra: DSEWPaC, 2011). 124 Australia, Dep’t of Climate Change, Climate Change Risks to Australia’s Coast: A First Pass National Assessment (Dep’t of Climate Change, 2009) at 71. 125 Since 1985, 23 of the 27 most common species of water bird have declined in the Coorong coastal estuarine system by at least 30 per cent. Ibid. at 52. 126 Ibid. at 54. 127 Already, there is a decline in coral calcification and growth of around 13 per cent since 1990 around the Great Barrier Reef. Ibid. at 58. 128 Ibid. at 62. 129 Commonwealth of Australia Constitution Act 1900 (Cth).

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matter is not listed under sections 51 and 52 of the Australian Constitution, it generally falls within the legislative competence of the state, enhancing their power to legislate in respect of ICZM and CCCA.130 Initially, the Commonwealth adopted a passive posture toward coastal and ocean management, particularly within the three nautical mile territorial sea where it was generally considered that the states had jurisdiction.131 This afforded the states considerable leeway in respect of coastal environmental management.132 In responding to changes in the international law of the sea and growing interest in offshore hydrocarbon development at the domestic level, the Commonwealth began to take a more active stance in ocean and coastal matters. This culminated in the enactment of the Seas and Submerged Lands Act, 1973.133 The Act affirmed the sovereignty of the Commonwealth over the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf.134 The validity of this legislation was impugned by six states in New South Wales v. Commonwealth (“Seas and Submerged Lands Act case”),135 inter alia, on the ground that the states had ownership or legislative power over the marginal seas adjacent to their coasts extending seaward up to three miles.136 However, the Australian High Court upheld the vires of the Act as a “valid exercise of legislative power with respect to external affairs.”137 It was affirmed that the jurisdiction of the states ended with the boundary of each of the states.138

130 Ibid., ss. 109 & 122. 131 This was the position under the Australian Constitution even though the Commonwealth had powers over “external affairs” (ibid., s. 51(xxix)) and “fisheries in Australian waters beyond territorial limits” (s. 51(x)). Rachel Baird, “The National Legal Framework” in Rachel Baird & Donald R. Rothwell, eds., Australian Coastal and Marine Law (Sydney: The Federation Press, 2011) 45 at 46. 132 Donald R. Rothwell & Rachel Baird, “Australia’s Coastal and Marine Environment” in Rachel Baird & Donald R. Rothwell, eds., Australian Coastal and Marine Law (Sydney: The Federation Press, 2011) 1 at 2. 133 Ibid. at 2–3. This legislation can be traced to the external power under section 51(xxix) of the Australian Constitution. Baird, supra note 131 at 46–47. 134 See generally Seas and Submerged Lands Act 1973 (Cth) [SSLA 1973]. 135 [1975] HCA 58, 135 CLR 337 (HC). 136 Ibid., ¶11. 137 Ibid., ¶26. 138 Ibid., ¶46; see also SSLA 1973, supra note 134, s. 14.

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It was also clarified that the Crown had jurisdiction and dominion over the territorial sea, and that it had never surrendered this to the colonies.139 Rather than settling the law, this decision led to uncertainty140 and the stalemate was resolved in 1979 when the Commonwealth and the states entered into an agreement to strengthen cooperative federalism by settling contentious and complex offshore constitutional issues.141 The Offshore Constitutional Settlement provided that the Commonwealth Parliament will pass legislation to give each state the same powers with respect to the adjacent territorial sea (including the seabed) as it would have if the waters were within the limits of the state.142 The Settlement was implemented into the federal Coastal Waters (State Title) Act, 1980,143 and the Coastal Waters (State Powers) Act, 1980.144 These laws give the states property in the seabed, and legislative powers over coastal waters up to three nautical miles, thereby setting a framework for cooperative federalism in Australian coastal and ocean management.145 6.3.2.2 Aboriginal Rights and Coastal Management Coastlines and oceans have considerably shaped indigenous culture in Australia, particularly the lives of Torres Strait Islanders.146 Efforts continue to be made to protect their traditional ways of life and livelihood, which, in a large measure, depend on the sea and on access to coastal resources.147 For 139 Edward A Fitzgerald, “New South Wales v. Commonwealth: The Australian Tidelands Controversy” (1991) 14 Loy LA Int’l & Comp L Rev 25 at 34 (HeinOnline). 140 See generally Pearce v Florenca, [1976] HCA 26, 135 CLR 507 (HC) (upholding the application of state fisheries laws in the territorial sea). 141 See generally Attorney General’s Dep’t, Offshore Constitutional Settlement: A Mile Stone in Co-operative Federalism (Canberra: Australian Gov’t Publishing Service, 1980). 142 Ibid. at 6. 143 Coastal Waters (State Title) Act 1980 (Cth), s. 4. 144 Coastal Waters (State Powers) Act 1980 (Cth), s. 3(1). 145 Each states’ coastal zone management statute defines the term coastal zone to recognize the land-sea continuum. For instance, see Coastal Protection Act 1979 (NSW), s. 4 [NSWCPA]; Coastal Protection and Management Act 1995 (Qld), s. 15 [Queensland CPMA 1995]. This has considerably influenced Australia’s fishing law as well. Under the Fisheries Management Act, 1991, the coastal waters of a state or internal territory are spread out to three nautical miles of territorial sea from the baselines. What this implies is that the states have responsibility for fisheries within three nautical miles of the baselines and thereafter from three nautical miles to 200 nautical miles, responsibility lies with the Commonwealth. Fisheries Management Act 1991 (Cth), s. 5(1)(a)(i). 146 Australia, Australia’s Oceans Policy (Canberra, 1998) at 8. 147 For instance, see generally Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area Between the Two

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a long while, the concept of terra nullius was a central tenet of Australian law regarding the relationship between the indigenous peoples and the Australian government. The doctrine arose from the “great voyages of European discovery” which opened to European nations the prospect of occupying new and valuable territories already inhabited by “backward peoples.”148 Basically, it was implied that the indigenous peoples had no legal title to the land at the time of colonial settlement, and that title to all land, as well as territorial sovereignty, was vested in the British Crown which had the discretion to do what it pleased under its prerogative powers.149 Terra nullius received a virtual deathblow in Mabo v Queensland (No. 2),150 a landmark decision that reverberates not only in Australia, but also beyond.151 Mabo introduced into common law, the concept of native title,152 which implied that even though the Crown acquired territorial sovereignty, it had no absolute ownership over the land, and that “the ownership that the Crown retained over the land was a radical title which could be burdened by the native title encumbrance where native title had not been extinguished.”153 Subsequently, the doctrine of native title was statutorily incorporated into the Native Title Act, 1993,154 to include rights and interests over both land and waters. This legal development has considerably influenced the development of Australia’s coastal law, which recognizes the rights of the indigenous peoples, their traditions and customs. This aspect is significant for coastal law development in South Asia in regard to extending statutory recognition to similar interests. 6.3.2.3

Legislating ICZM and Promoting Coastal Climate Change Adaptation While state, territory and local governments propel ICZM and CCCA through coastal legislation, building codes and land use planning regulations, to s­ teward

148 149 150 151 152 153

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Countries, Including the Area Known as Torres Strait, and Related Matters, (18 December 1978), 1985 ATS 4 (entered into force 15 February 1985). Mabo v Queensland (No. 2), [1992] HCA 23, 175 CLR 1 (HC) ¶33 [Mabo]. David Ritter, “The “Rejection of Terra Nullius” in Mabo: A Critical Analysis”  (1996) 18 Sydney L Rev 5 at 7–13 (HeinOnline). Mabo, supra note 148. For instance, see the Supreme Court India’s decision in Samatha v AP (1997), [1997] 8 SCC 191 (India SC). Mabo, supra note 148, ¶55. Samantha Hepburn, “Native Title in Coastal and Marine Waters” in Rachel Baird & Donald R. Rothwell, eds., Australian Coastal and Marine Law (Sydney: The Federation Press, 2011) 296 at 297. See (Cth), s. 223(1).

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the national economy, the Commonwealth facilitates the effort by providing leadership and coordinating the activities of the states. Among the coastal states, New South Wales, Victoria, Queensland and South Australia have coastal management legislation. Those of New South Wales and Queensland are examined below as to how they provide for ICZM implementation and CCCA. 6.3.2.3.1 New South Wales The basic objective of the New South Wales Coastal Protection Act, 1979 (NSW Coastal Act) is to protect the coastal environment to ensure intra-and inter-generational equity.155 The Act empowers councils to create coastal zone management plans156 to protect and preserve beach environments and amenity, promote undiminished public access, manage estuaries, and provide for emergency actions in the event of beach erosion.157 The plans also provide for risk management from general coastal hazards and related climate change impacts.158 It sets out detailed procedures for drawing up coastal zone management plans159 and encourages public consultation in doing so.160 In addition, the Minister for Climate Change and the Environment has issued “Guidelines for Preparing Coastal Zone Management Plans,” including measures to deal with coastal risk management.161 The NSW Coastal Act also sets out rules concerning the granting of development consent for coastal protection works.162 To reduce “red tape” that hampers the ability of landowners to place temporary coastal protection works around their properties, the Coast Protection Amendment Act, 2012, makes generous provisions allowing owners to place sandbags as temporary coastal protection works163 and dispenses with requirements for planning and associated approvals in placing these works.164 However, landowners must maintain 155 NSWCPA, supra note 145, s. 3. 156 Ibid., s. 55B. 157 Ibid., s. 55C. 158 Ibid. 159 Ibid., s. 55D. 160 Ibid., s. 55D–J. 161 Australia, Dep’t of Envt, Climate Change & Water NSW, Guidelines for Preparing Coastal Zone Management Plans (Sydney South: Dep’t of Envt, Climate Change & Water NSW, 2010) at 10–15. 162 NSWCPA, supra note 145, s. 55M; see also ibid., s. 4(1). 163 Ibid., s. 55P(1), s. 55X; see also Coastal Protection Regulation 2011 (NSW), part 3; see generally Australia, Dep’t of Envt, Climate Change & Water, NSW, Code of Practice under the Coastal Protection Act 1979 (Sydney South: Dep’t of Envt, Climate Change & Water, NSW, 2011). 164 NSWCPA, supra note 145, s. 55O.

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these temporary coastal protection works.165 If the temporary coastal protection work increases erosion, or unreasonably limits public access, or threatens public safety, it has to be altered, repaired or removed.166 New South Wales has also adopted a coastal policy framework to coordinate coastal management efforts.167 Goal 2 of this Policy deals with climate change and emphasizes the need to consider physical and ecological processes and hazards while assessing development applications.168 The NSW Coastal Planning Guideline: Adapting to Sea Level Rise, 2010, is another important document that lays down coastal planning principles for SLR adaptation. It also promotes ecologically sustainable development and emphasises a precautionary approach by accommodating SLR into land use planning and development assessment.169 The NSW Sea Level Rise Policy Statement, 2009, was prepared to support consistent adaptation to projected SLR impacts. It prescribes SLR planning benchmarks, relative to the 1990 mean sea level of 0.4 meters by 2050, and 0.9 meters by 2100.170 However, uncertainty associated with climate change hampered the ability of local councils to consider local conditions in determining the impact of future climate change related hazards.171 Consequently, in a marked departure from established policy, the NSW Government began to re-write the rules of coastal engagement. A series of far-reaching coastal reforms (stages I and II) are being introduced, including the establishment of a Coastal Ministerial Taskforce “to ensure that NSW has the most appropriate plans, legislation and other arrangements in place to manage coastal erosion

165 Ibid., s. 55R. 166 Ibid., s. 55ZC. 167 See generally Australia, NSW Coastal Policy 1997: A Sustainable Future for the New South Wales Coast (NSW: 1997) (entitled “Part A: The Policy”) [NSW Coastal Policy 1997]. It must be noted that the Coastal Policy has considerable legal force. See “Direction No. 6— Coastal Protection” in Australia, NSW: Dep’t of Planning, Section 117 Ministerial Directions Issued Under the Environmental Planning and Assessment Act 1979, New South Wales Planning Reforms (2005) at 7. 168 NSW Coastal Policy 1997, ibid. at 46, ¶2.1.3 (entitled “Part B: Implementation”). 169 Australia, NSW Coastal Planning Guideline: Adapting to Sea Level Rise (NSW: Dep’t of Planning, 2010) at 1. 170 Australia, NSW Sea Level Rise Policy Statement (Sydney South: Dep’t of Envt, Climate Change & Water, NSW, 2009) at 4. 171 For more details on coastal reforms, see NSW, Environment & Heritage, Stage 1 Coastal Reforms Q&As, online: NSW, Environment & Heritage [Stage 1 Coastal Reforms Q&As].

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and other coastal hazards, both now and into the future.”172 One of the most important changes adopted is to do away with the statewide SLR planning benchmarks, rendering the NSW Sea Level Rise Policy Statement redundant. Local councils are now empowered to determine SLR projections to meet local conditions.173 6.3.2.3.2 Queensland Blessed with 9,500 kilometers of coastline, and with more than 80 per cent of Queenslanders living on the coast, the coastal areas play a vital role in the well-being of this state.174 Rapid population growth and SLR pose the greatest challenges to the coastal environment of Queensland, home of the Great Barrier Reef. By providing for the broader issue of coastal hazards, Queensland’s Coastal Protection and Management Act, 1995,175 includes within its ambit mitigation of SLR and climate change impacts. In fact, one of its objectives is to ensure that land use and development decisions protect life and property from coastal hazards.176 It achieves its diverse objectives through the preparation of a coastal plan, declaring coastal management districts and erosion prone areas, and by providing for monitoring, reporting and review requirements.177 It empowers the Minister to prepare a coastal plan, a statutory instrument,178 describing how the coastal zone is to be managed.179 The Minister is required to consider the effects of climate change on coastal management when preparing this plan,180 which has a general lifespan of 10 years181 and is developed with public input.182 172 Ibid.; see also Chris Hartcher, Minister for Resources and Energy Special Minister of State Minister for the Central Coast, Media Release, “NSW Moves Ahead on Coastal Management” (8 September 2012). 173 Sea Level Rise, online: NSW, Environment & Heritage ; see also Stage 1 Coastal Reforms Q&As, ibid. For more details on other actions under stage I, see Stage 1 Coastal Reforms Overview, online: NSW Government, Envt & Heritage . 174 See generally Australia, Dep’t of Environment and Resource Management, Queensland Coastal Plan (Brisbane: Dep’t of Environment and Resource Management, 2012). 175 Queensland CPMA 1995, supra note 145, pmbl. 176 Ibid., s. 3(c). 177 Ibid., s. 4. 178 Ibid., s. 35. 179 Ibid., ss. 20–21(1). 180 Ibid., s. 21(2)(a). 181 Ibid., s. 33(1)(b). 182 Ibid., s. 4(b).

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Several requirements in this coastal law indirectly further CCCA. The Act empowers the Minister to constitute any area within the coastal zone as a coastal management district if it requires protection or management.183 In these coastal management districts, the chief executive is empowered to approve coastal protection184 and tidal protection185 notices. Similarly, the chief executive can also declare areas subject to erosion or tidal inundation within the coastal zone to be an “erosion prone area.”186 The Act also proscribes the damaging of coastal vegetation and dunes187 and subjects the quarrying of materials to a permit system.188 Pursuant to the Coastal Protection and Management Act 1995, the Queensland Coastal Plan was prepared. This Plan has two parts: the “State Policy for Coastal Management” and the “State Planning Policy 3/11: Coastal Protection,” which was replaced by the “Draft Coastal Protection State Planning Regulatory Provision: Protecting the Coastal Environment,” (8 October 2012), issued under the Sustainable Planning Act, 2009.189 Subsequently, the “Draft Coastal 183 Ibid., s. 54. Before an area is declared as a coastal management district, the following factors are to be considered, namely, the area’s vulnerability to sea or wind erosion induced effects, whether the area should be kept in an undeveloped state to maintain or enhance the coast or coastal resources, public access to a foreshore, existing land tenure, aboriginal traditions and island customs, and the need to conserve, protect or rehabilitate coastal ecological systems or geomorphic features of the area. See also ibid., s. 56. 184 A coastal protection notice is generally issued to a person to take “reasonable action” to protect land, or to stop activities that cause adverse effects on coastal resources or wind erosion. A coastal protection notice may require the person to build or maintain works, not to alter geographical features of the land, to protect vegetation native to the coastal management district, to do things necessary to protect land from wind erosion, etc. Ibid., s. 59. 185 To protect public safety or to prevent adverse consequences on coastal resources, a tidal works notice is issued to repair the relevant works or remove the relevant works or structure and to restore the site as nearly as practicable to its former condition. Ibid., s. 60. 186 Ibid., s. 70. 187 For more details, see ibid., s. 69 (minor damage that occurs in the course of the ordinary use of land is exempted). 188 See generally ibid., part 5. 189 Sustainable Planning Act 2009 (Qld) (seeks to promote ecological sustainability by managing the process and effects of development). Since the State Planning Policy 3/11: Coastal Protection was found not supportive of economic growth, its operation was suspended and in the interim, the Draft State Planning Regulatory provision came into effect. See generally Australia, Draft Coastal Protection State Planning Regulatory Provision: Protecting the Coastal Environment October 2012 (Brisbane Qld: Dep’t of State Development, Infrastructure and Planning, 2012) [Draft SPRP].

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Protection State Planning Regulatory Provision” was allowed to lapse and in recent times, the coastal management regime has undergone a major rewrite.190 Prior to this reform exercise, the Queensland Coastal Plan provided for both land-use planning and development and also spelt out the general rules for the management and use of the coast and its resources. Presently, an independent regime has been created under the Sustainable Planning Act, 2009, namely, the State Development Assessment Provisions; a statutory instrument to deal with all matters relating to coastal development and land-use planning that fall under the jurisdiction of the chief executive, either as an assessment manager or as a referral agency.191 In other words, the State Development Assessment Provisions does not apply to local governments in the assessment of development applications that come before them.192 And this, as the subsequent discussion will reveal, has serious repercussions for CCCA implementation. The chief executive makes decisions regarding coastal development by referring to the stipulations contained in Module 10 titled: “Coastal Protection” in the State Development Assessment Provisions.193 Module 10 is a self-contained code on matters relating to tidal works or development in a coastal management district and its purpose is to ensure that development in coastal areas is managed to “protect and conserve” coastal resources and to enhance the resilience of coastal communities against coastal hazards.194 Accordingly, the document lays down criteria against which the viability of development projects is to be assessed.195 The Module also prescribes certain sea level rise benchmarks—for the year 2050, the projected sea level rise is estimated to be 0.3 meters; for 2080, it is 0.6 meters and for 2100 it is 0.8 meters.196 All other activities that are not subsumed under the term ‘development’ in the Sustainable Planning Act are matters for consideration under the State

190 For more details see Queensland Government, Department of State Development, Infrastructure and Planning, “Lapsed or repealed state planning regulatory provisions” online: 191 Australia, Dep’t of State Development, Infrastructure and Planning, State Development Assessment Provisions (Brisbane: Dep’t of State Development, Infrastructure and Planning, 2014) at 8. 192 Ibid. 193 See generally ibid. 194 Ibid. at 10–1. 195 See generally ibid. 196 Ibid. at 10–12.

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Coastal Management Plan.197 This plan, which replaces the Queensland Coastal Plan, has a lifespan of ten years.198 Essentially, it represents “non-regulatory best practice coastal management policies”199 providing guidance to local governments, community groups, and natural resources management bodies200 on matters relating to public access, nature conservation, protection of indigenous cultural heritage, knowledge sharing and community engagement.201 As mentioned above, the State Development Assessment Provisions apply only in cases where the chief executive (rather than the local government) assesses a development application, and at a practical level, this occurs only in a very limited range of circumstances. It is the local governments that deal with the majority of development applications and this exercise is carried out according to the terms spelt out in the 2013 State Planning Policy.202 As a statutory planning instrument that applies throughout the entire state,203 the State Planning Policy is at the apex of a hierarchy of planning instruments, and through this policy, the state sets out its interests that must be addressed in local government planning schemes, regional plans, and in decisions regarding development applications.204 The document identifies 16 state interests arranged under five broad themes, namely, livable communities and housing, economic growth, environment and heritage, hazards and safety and infrastructure.205 Even though the policy emphasizes the need to maintain erosion-prone areas within a coastal management district as development-free buffer zones, development in such areas can still be permitted if it cannot be feasibly located elsewhere, and also if it is coastal-dependent.206 Surprisingly, neither does this policy refer to SLR nor does it prescribe benchmarks that

197 Australia, Coastal Planning, Department of Environment and Heritage Protection, Coastal Management Plan (Queensland: Coastal Planning, Department of Environment and Heritage Protection, 2013) at 10–13. 198 Ibid. at 15. 199 Ibid. at 6. 200 Ibid. at 5. 201 Ibid. at 7–14. 202 See generally Australia, Dep’t of State Development, Infrastructure and Planning, State Planning Policy (Brisbane: Department of State Development, Infrastructure and Planning, 2013). 203 Ibid. at 9. 204 Ibid. at 6. 205 Ibid. at 16–42. 206 Ibid. at 35.

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can assist local governments in making development decisions.207 In other words, sea levels are excluded from the planning process.208 While this affords greater freedom to local bodies to determine the nature of coastal development, this pro-development approach opens up the possibility of seeing more development in vulnerable coastal areas, which can prove unsustainable in the long-run.209 In sum, it seems that the Queensland government considers that the local governments are best suited to make planning decisions relating to the coastal zone based on their local conditions. And to give effect to this notion; changes are also being contemplated to Module 10 of the State Development Assessment Provisions to align it with the State Planning Policy. 6.3.2.4 Leadership Role of the Commonwealth Government While the overall strategic direction for coastal management in Australia is determined by the principles of ecologically sustainable development, being a federal state, coastal management is diffused between the national, state and in certain cases, the local governments.210 However, the practical reality of implementing ICZM and CCCA requires greater uniformity and coordination among the various levels of government. The above overview of the legislative structure in the states shows there is divergence in the way in which ICZM and CCCA is conceived and implemented in Australia’s coastal states. For instance, in Queensland, CCCA emanates primarily as part of planning law; in New South Wales it has its grounding in the coastal law. While divergence in approach is to be respected, coastal ecosystems and climate change impacts can span jurisdictional boundaries. In other words, divergence must be accommodated within a frame of common parameters. It falls to the Commonwealth government to ensure that there is consistency in ICZM practice and CCCA implementation throughout the country within that frame. This is why the Commonwealth Government, in conjunction with the state and territory jurisdictions, developed the Framework for a National 207 For more details, see Justice Bell & Mark Baker-Jones, “Retreat from Retreat—the Backward Evolution of Sea-level Rise Policy in Australia, and the Implications for Local Government” (2014) 19 LGLJ 23. 208 Ibid. 209 Ibid. 210 Neil Lazarow et al., eds., Coastal Management in Australia: Key Institutional and Governance Issues for Coastal Natural Resource Management and Planning (Cooperative Research Centre for Coastal Zone, Estuary and Waterway Management (Queensland: Coastal CRC, 2006) at ix.

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Cooperative Approach to Integrated Coastal Zone Management, 2003. This is “a high level strategic instrument” that sets the stage for “national cooperation” for coastal management and seeks to accomplish ecologically sustainable outcomes.211 The Framework identifies six priority areas and focuses on “national collaboration” in meeting the challenges posed by climate change.212 It emphasizes the importance of integrating climate change adaptation initiatives “with existing coastal zone conservation, planning and management processes.”213 Furthermore, it calls for the development of guidelines and tools for coastal zone managers and planners on climate change risks, liability and adaptation options and the sharing of these outcomes.214 In addition, climate change adaptation is a core pillar in the Australian government’s climate change strategy and the coast is a national priority area for action.215 To augment adaptive capacity, the National Climate Change Adaptation framework identifies potential measures, including the development of a climate change and fisheries action plan, and a national web-based “Oz Coasts Portal” which contains information, maps, tools and other products relating to the coast and climate change.216 Additional CCCA initiatives undertaken include a national coastal risk assessment,217 coastal adaptation decision pathways projects,218 establishment of the Coasts and Climate Change Council with the mandate to advise “the Government on coastal adaptation issues and reform priorities.”219 There is also a growing jurisprudence highlighting the 211 NRMMC, National Cooperative Approach, supra note 119 at 10. 212 Ibid. at 16. 213 Ibid. at 39. 214 Ibid. 215 See generally Australia, Adapting to Climate Change in Australia: An Australian Government Position Paper (np: Dep’t of Climate Change, 2010). 216 Australia, Dep’t of Climate Change & Energy Efficiency, National Climate Change Adaptation Framework, online: Dep’t of Climate Change & Energy Efficiency, What the Government is Doing, A–Z of Government Programs and Initiatives, National Climate Change Adaptation Framework . 217 See generally Australia, Dep’t of Climate Change & Energy Efficiency, Climate Change Risks to Coastal Buildings and Infrastructure A Supplement to the First Pass National Assessment (np: Dep’t of Climate Change & Energy Efficiency, 2011). 218 For more details, see Australia, Dep’t of Climate Change & Energy Efficiency, Coastal Adaptation Decision Pathways projects, online: Dep’t of Climate Change & Energy Efficiency, . 219 Australia, Dep’t of Climate Change & Energy Efficiency, Coasts and Climate Change Council, online: Dep’t of Climate Change & Energy Efficiency, Climate Change, Australia’s Coasts and Climate Change, Adapting to Coastal Climate Change, Coasts and Climate Change Council ; Australia, Dep’t of Climate

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need to take into account the risks posed by climate change and SLR in line with the precautionary approach when deciding on whether or not to situate development in coastal areas.220 6.3.2.5 Discussion Like the United States, Australia also offers compelling lessons to coastal South Asia in terms of how to operationalize ICZM and CCCA. In part, due to the Offshore Constitutional Settlement and subsequent legislative efforts, the states have secured jurisdiction over a significant belt of coastal waters. Apart from the residuary powers of legislation, this facet of the Australian model has helped to entrench the implementation of ICZM and CCCA at the state level. Under both the NSW Coastal Protection Act, 1979, and the Queensland Coastal Protection and Management Act, 1995, ICZM is practiced through a principled approach and implemented through the preparation of coastal zone management plans, notwithstanding noticeable differences between their adaptation rules and the overall approaches adopted to work them. The recent reforms to the Australian coastal law, in particular those related to climate change adaptation, are specifically useful to engender harmonized approaches to ICZM implementation in the country. It is not possible for any state to fortify large stretches of coastline. Moreover, large segments of the coastline can be in private hands. This is why the NSW Coastal Act has empowered individual property owners to set up environmentally friendly temporary Change & Energy Efficiency, Council advice to Minister Combet—December 2011 . 220 See Alanvale Pty Ltd v Southern Rural Water, (2010), VCAT 480 (Austl, VCAT) (refusing licenses to extract groundwater from coastal aquifers); see also Paul v Goulburn Murray Water Corporation, (2010) VCAT 1755 (Austl, VCAT) (refusing to interfere with licenses, since the extractions from the aquifer was imperceptible); Owen v Casey CC (includes Summary) (Red Dot), (2009), VCAT 1946 (Austl, VCAT); see also Cooke v Greater Geelong CC, (2010), VCAT 60 (Austl, VCAT) (emphasizing the need for a coastal hazard vulnerability assessment for a permit application for dwellings); Cadzow Enterprises Pty Ltd v Port Phillip CC, (2010) VCAT 634 (Austl, VCAT); Suburban Blue Print Pty Ltd v Hobsons Bay CC, (2010), VCAT 1272 (Austl, VCAT) (raising the floor level of buildings); Myers v South Gippsland SC (includes Summary) (Red Dot), (2009), VCAT 1022; Myers v South Gippsland SC (No. 2) (includes Summary) (Red Dot), (2009), VCAT 2414 (deciding the appropriateness regarding the sub-division of a lot to provide for a second one as well); West Gippsland Catchment Management Authority v East Gippsland SC, (2010), VCAT 1334 (Austl, VCAT) (refusing to use and develop a dwelling and remove vegetation from land located on an isolated peninsula); Wade v Warrnambool CC, (2009), VCAT 2177 (Austl, VCAT) (restraining development on land abutting coastal wetlands).

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coastal protection works. However, these may not be of much help in the event of a large storm surge, or intense flooding. The Australian model also highlights the uncertainties of climate change and its implications for policy development for CCCA. The Australian states reviewed here once had state-wide benchmarks regarding coastal development for reason of SLR. Now, this approach is being abandoned, and New South Wales has gone to the extent of empowering local councils to develop their benchmarks based on local conditions. Though this provides the councils with room to respond to future coastal hazards, the policy will contribute to a diversification of sea-level rise benchmarks across the different local jurisdictions and pose challenges to putting in place precautionary responses at statewide and national levels to protect critical coastal processes. For coastal South Asia, the lesson is to not entrust determination of SLR benchmarks to local bodies due to the inadequacies and imperfections in available data on SLR, and the limited jurisdiction and resources available to the local bodies. The central place given to aboriginal interests in coastal management is another notable feature of the Australian model. The problems of the indigenous peoples in Australia differ vastly from those faced by similar groups in South Asia. But the lesson here is that a coastal law can be a potent instrument to secure the rights of indigenous coastal communities that are rooted in their longstanding relationship to the oceans, coastal spaces and marine resources. 6.3.3 South Africa South Africa is an acclaimed leader in advocating and popularizing ICZM law on the African continent.221 Surrounded by the waters of the Atlantic, the Indian and the Southern oceans, the South African coastline extends to 3,650 kilometers.222 The coastline has a diverse landscape, and climate sensitive natural resources. Nearly 40 per cent of South Africa’s population lives within 100 kilometers of the coast,223 with over seven million living in the coastal cities of Cape Town, Durban, Port Elizabeth, and East London. These four cities 221 South Africa, Dep’t of Environmental Affairs, South Africa’s Integrated Coastal Manage­ ment Act Shortlisted for the 2012 World Future Policy Award for Exemplary Coastal and Ocean Policies, online: Dep’t of Environmental Affairs . 222 South Africa, Dep’t of Environmental Affairs, National Climate Change Response Green Paper (2010) at 30. 223 South Africa, National Climate Change Response White Paper (np, 2011) at 23; Dep’t of Environmental Affairs and Tourism, Environment Outlook: A Report on the State of Environment of South Africa (Dep’t of Environmental Affairs and Tourism, 2006) at 173 [State of Environment of South Africa Report].

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are experiencing rapid population growth and their populations are likely to double in the next 25 to 30 years. Like most other coastal regions, climate predictions and projections are not sanguine for South Africa. Tide gauge measurements show that the sea level has risen by approximately 1.2 millimeters annually over the last three decades and it is predicted that by 2020, there could be a 12.3 centimeter rise, increasing to 24.5 centimeters by 2050 and 41 centimeters by 2080.224 Sea-surface temperatures have increased by about 0.25 degree Celsius per decade over the past four decades.225 Erratic precipitation patterns have reduced freshwater flows into estuaries, which has increased the concentration of pollutants in the coastal zone and limited their ability to support natural biota, particularly the prawn trawl fishery.226 During the apartheid period, South Africa was basically a unitary state with centralized powers.227 As in South Asia, a primary legacy of colonial rule and the apartheid regime was a skewed system of benefit sharing of common pool resources. The rights to benefit and use coastal resources were prerogatives that could be enjoyed only by a privileged few.228 The Sea Shore Act, 1935, declared “the State President to be the owner of the sea-shore and the sea within the territorial waters of the Republic. . . .”229 Coastal zone management during that period was resource-centric, top-down in approach, and fragmented. As a result, “the value of coastal ecosystems as a cornerstone for development was not sufficiently acknowledged in decision-making.”230 With the fall of apartheid and the inauguration of a new constitution in 1996, “command and control” gave way to “co-operative government”231 based on a quasi-federal system of government.232 The South African Constitution233 224 State of Environment of South Africa Report, ibid. at 178. 225 Ibid. 226 Ibid. at 177. 227 Jan Glazewski & Marcus Haward, “Towards Integrated Coastal Area Management: A Case Study in Co-operative Governance in South Africa and Australia” (2005) 20 Int’l J Mar & Coast L 65 at 69 (HeinOnline). 228 South Africa, White Paper for Sustainable Coastal Development in South Africa (np: Dep’t of Environmental Affairs & Tourism, 2000) ¶2.2.2 [SA White Paper SD]. 229 Sea-Shore Act, 1935, (S Afr), No. 21 of 1935, long title [emphasis added]; see also SA, Integrated Coastal Management Act, supra note 54, pmbl. 230 SA White Paper SD, supra note 228 (executive summary). 231 Constitution of the Republic of South Africa, 1996, (S Afr), No. 108 of 1996, ch. 3 [Constitution of South Africa] (entitled co-operative government). 232 Glazewski & Haward, supra note 227 at 69. 233 Morné Van der Linde, ed., Compendium of South African Environmental Legislation (Pretoria: Pretoria University Law Press, 2006) at 31.

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re-wrote the rules on environmental justice by securing to all the right “to an environment . . . not harmful to their health or well-being” and “to have the environment protected for the benefit of present and future generations.”234 The National Environmental Management Act, 1998, entrenched the environmental rights guaranteed by the Constitution. The growing recognition of the economic value of coastal ecosystems as a cornerstone for national economic development impelled calls for a new coastal law imbued in equity with emphasis on sustainable coastal development.235 The series of reforms that led to the re-writing of the coastal law regime to introduce a new era for coastal management can be traced to the 2000 White Paper for Sustainable Coastal Development in South Africa.236 The White Paper set out four cornerstones for coastal management efforts: 1) recognition of the economic value of coastal ecosystems for economic development; 2) adoption of a people-centric approach to sustainable coastal development; 3) promotion of a holistic way of thinking that involves coordinated and integrated coastal management; and 4) implementation of a facilitatory style of management involving cooperation, participation, and shared responsibility of those with an interest in the coastal zone.237 It also called for the drafting of a new coastal management statute based on these principles.238 The National Environmental Management: Integrated Coastal Management Act, 2008,239 (ICM Act), as its title suggests, is a statute within the framework of the National Environmental Management Act, 1998. It is based on an understanding that there is the need for “a new co-operative and participatory approach to managing the coast.”240 As such, integrated management of the coastal zone is essential to achieving the constitutional commitment to improve the quality of life of all citizens and to protect the natural environment for the benefit of the present and future generations.241 The ICM Act is based on principles integral to sustainability.242 In a marked departure from the past, and to set right the inequitable state-centric and 234 Constitution of South Africa, supra note 231, s. 24. 235 Bruce C. Glavovic, “A New Coastal Policy for South Africa” (2000) 28:3 Coast Mgmt 261 at 263. 236 SA White Paper SD, supra note 228 (foreword by Minister of Environmental Affairs and Tourism). 237 See generally ibid., executive summary. 238 Ibid., ¶9.3.2. 239 See generally SA, Integrated Coastal Management Act, supra note 54. 240 Ibid., pmbl. 241 Ibid. 242 Some of the major principles are co-operative governance, integration and participation. Ibid., s. 2.

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resource intensive approach to coastal management, the law incorporates the concept of trusteeship. The state is treated only as a trustee of the coastal zone,243 not the owner of all coastal resources. Moreover, the Minister is to provide sufficient information on matters relating to the protection and management of the coastal zone to the general public to enable them to make informed decisions as to the extent to which the state has fulfilled its trusteeship duties.244 The ICM Act has four dimensions: it provides a comprehensive definition to the coastal zone; establishes institutional administrative mechanisms; provides tools for coastal conservation and for the sustainable use of coastal resources; and prescribes measures to adapt to a rising sea. These aspects are detailed below. 6.3.3.1 Defining the Coastal Zone Since the ICM Act focuses on regulating human activities that take place within the coastal zone,245 an understanding of what constitutes the coastal zone is vital. Generally, the definition of the coastal zone largely depends upon what a particular country considers as being its essential elements. The ICM Act defines the “coastal zone”246 as “the area comprising coastal public property, the coastal protection zone, coastal access land and coastal protected areas, the seashore, coastal waters and the exclusive economic zone and includes any aspect of the environment on, in, under and above such area.”247 Of all the enumerated elements, coastal public property248 is perhaps the most important, as it reflects a people-centric approach to coastal management. Ownership over coastal public property is vested with the citizens, which, in turn, is held by the state in trust for them.249 As public trustee, the state has to ensure that coastal public property is “used, managed, protected, conserved and enhanced” in a way that promotes the interests of the community as a whole and, therefore, there are limits on the rights which the state can exercise vis-à-vis coastal public property.250 The state must also adopt reasonable legislative and other measures to conserve and protect this property for 243 244 245 246 247 248 249 250

Ibid., s. 3(a). Ibid., s. 93(1). Ibid., s. 2(c). Ibid. at ch. 2. Ibid. at ch. 1. Ibid., ss. 7–9. Ibid., s. 2(c). It is legally stipulated that the state cannot sell, attach or acquire by prescription coastal public property. Ibid., s. 11(2).

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the benefit of the present and future generations. The ICM Act goes a step further and accords the right of access and the right to use and enjoy coastal public property to all natural persons (not only South African citizens). Generally, no fees can be charged for the enjoyment of these rights.251 Even though the management of coastal public property is imbued by the concept of public trust, in regard to such property, the Minister can grant leases for buildings, roads, barriers or structures, or concessions in respect of coastal resources.252 To ensure that the public can gain access to coastal public property via “public access servitudes,” municipalities can make by-laws designating strips of land as coastal access land. But, the environmental impact of granting such access must first be assessed in consultation with interested and affected parties. The rules concerning public access253 authorize the Minister to prohibit a person from carrying out (or even intending to do) an activity that can adversely impair the rights of natural persons to gain access to coastal public property.254 The coastal protection zone255 includes land adjacent to coastal public property, or which plays a significant role in coastal ecosystems. It is measured from the ‘high water mark’ (HWM) and extends 100 meters inland (if the area is a developed urban area zoned as residential, commercial, or public open space), or 1,000 meters inland (if the area is undeveloped or is a rural area), as the case may be.256 In this zone, the goal is to protect ecological integrity; natural character; economic, social and aesthetic value; and people, property and economic activities from the risks and threats which may arise from coastal hazards.257 6.3.3.2

Administering the Law: Institutional Mechanisms and Securing Public Participation Successful ICZM implementation is predicated on the presence of effective institutional mechanisms. In line with South Africa’s federal system of government, the ICM Act provides a three-tier institutional structure based on 251 252 253 254 255 256

Ibid., s. 13(3). Ibid., ss. 65–66. Ibid., ss. 20 & 29. Ibid., s. 59(5). Ibid., s. 16. L. Celliers et al., A User-friendly Guide to South Africa’s Integrated Coastal Management Act (Cape Town: Dep’t of Environmental Affairs and SSI Engineers and Environmental Consultants, 2009) at 23. 257 SA, Integrated Coastal Management Act, supra note 54, s. 17.

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“co-operative coastal governance.”258 The primary authorities under the ICM Act are the Minister for Environmental Affairs and Tourism at the national level, and a Member of the Executive Council (MEC) of a coastal province responsible for the designated provincial lead agency.259 Both have wide powers, including hearing appeals and making regulations.260 The Act also provides for the creation of coastal committees, which are treated as the “embodiment of co-operative coastal governance.”261 At the national level, the National Coastal Committee262 “promote[s] integrated coastal management . . . and effective co-operative governance.”263 The MEC establishes provincial coastal committees to promote ICZM and to coordinate and implement the provincial coastal management program.264 There is also provision for municipal coastal committees, to participate in implementing the ICM Act and the municipal coastal management programs.265 Any member of the public who possesses the appropriate expertise can be appointed as a voluntary coastal officer to perform such duties and exercise such powers as is assigned to him or her by the MEC for the conservation and protection of coastal public property.266 Public participation, an essential cog in the ICZM process, is contemplated at several stages: the formulation of the estuarine management plan;267 the imposition of fees for accessing coastal public property;268 and prior to the adoption of the national,269 provincial,270 and municipal coastal management programs,271 and even post adoption.272

258 259 260 261 262 263 264 265 266 267 268 269 270 271 272

Constitution of South Africa, supra note 231. SA, Integrated Coastal Management Act, supra note 54, s. 1. Ibid., ss. 83–84, 90 & 94. Celliers et al., supra note 256 at 36. For the composition, see SA, Integrated Coastal Management Act, supra note 54, ss. 26 & 35(1). Ibid., s. 35(3). Ibid., s. 39. Ibid., s. 42. Ibid., s. 43. Ibid., s. 34. Ibid., s. 13. Ibid., s. 44(2). Ibid., s. 46(2). Ibid., s. 48(2). Ibid., s. 44(3).

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6.3.3.3

Coastal Conservation Tools and Sustainable Coastal Resources Utilization The ICM Act envisages five strategies for coastal conservation and sustainable use of coastal resources: 1) coastal management; 2) protection of coastal environment; 3) marine and coastal pollution control; 4) protection of estuaries; and 5) public access to coastal resources. Specified tools, as elaborated below, carry out these strategies. The ICM Act identifies two practical tools to achieve coastal management, namely, the CMP and coastal planning schemes.273 The Act envisages a cascading hierarchical system of CMPs: a national CMP274 developed by the Minister275 to provide strategic and overarching direction to integrated coastal management;276 provincial CMPs developed by the MEC277 in harmony with the national CMP;278 and individual municipal CMPs279 consistent with both the provincial and national CMPs.280 Roughly corresponding to the federal nature of the South African polity, this system accommodates and harmonizes local development imperatives with national objectives and, more importantly, crafts “management responses” that are sensitive to the “natural, social and economic differences along the . . . coastline.”281 The Act calls for the system of CMPs to be in place by the end of 2013, and includes provisions for regular review.282 Coastal planning schemes283 define areas within the coastal zone or coastal management area that can be used exclusively for a specific purpose or activity,284 or can restrict or prohibit certain activities or uses.285 Coastal planning schemes are to be developed in tandem with the ICM Act, national and coastal management programs, and estuarine management plans. Generally, the Minister, the manager of a coastal protected area, the MEC, the 273 274 275 276 277 278 279 280 281 282

Celliers et al., supra note 256 at 42. SA, Integrated Coastal Management Act, supra note 54, ss. 44–45. Ibid., s. 44 Ibid., s. 45(1)(a). Ibid., s. 46. Ibid., s. 47(1)(c)(i). Ibid., s. 48. Ibid., s. 49(1)(b)(i). Celliers et al., supra note 256 at 42. SA, Integrated Coastal Management Act, supra note 54, ss. 44(1)(b), 54(1), (5), (5)(b) & 55(1). 283 Ibid., s. 56(1). 284 Ibid., s. 56(1)(a)(i). 285 Ibid., s. 56(1)(b).

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­ unicipality, and the management authority of a special management area m can establish coastal planning schemes in this hierarchical order.286 The ICM Act provisions on the coastal environment include the duty to avoid causing adverse effects to the coastal environment and to remediate environmental damage.287 To secure this interest, there are provisions for coastal protection, repair or removal notices, and detailed rules concerning environmental authorization for coastal activities.288 There are also provisions for special management for areas with unique environmental, cultural or socio-economic conditions.289 Land-based sources of marine and coastal pollution are a significant problem in South Africa. For instance, an estimated 63 ocean outfalls discharge, daily, about 800,000 cubic meters of sewage and industrial effluents into the sea, and this seriously affects marine environmental quality.290 The ICM Act provides for the regulation of the discharge of effluents into coastal waters and imposes controls on controls ocean dumping and incineration of wastes at sea.291 As well, the South African coastline is dotted with 343 estuaries.292 The ICM Act calls for the establishment of “a system of integrated coastal and estuarine management” on the basis of a national estuarine management protocol, which establishes the minimum requirements for the estuarine management plans. This protocol is to be developed by the Minister, in consultation with the Minister of Water Affairs.293 6.3.3.4 Coastal Climate Change Adaptation Section 62 of the ICM Act imposes additional requirements on the three levels of government in respect of their land use laws as applied to the coastal zones. The requirement is meant to give effect to section 17 of the Act, which seeks to protect “people, property and economic activities from risks arising from dynamic coastal processes, including the risk of sea-level rise.” Several 286 Ibid., ss. 56–57. 287 Ibid., s. 58; see also National Environmental Management Act, (S Afr), No. 1540 of 1998, s. 28. 288 SA, Integrated Coastal Management Act, ibid., ss. 59–60, ss. 63–64. 289 Ibid., s. 23(1)–(2). 290 See generally UNEP & UN Habitat, Coastal Area Pollution the Role of Cities: Involvement, Influence, Implementation (Nairobi: United Nations Environment Programme, 2005). 291 SA, Integrated Coastal Management Act, supra note 54, ss. 69–70. 292 Burghard W. Flemming, “Geographic Distribution of Muddy Coasts” in Terry R. Healy, Ying Wang & Judy-Ann Healy, eds., Muddy Coasts of the World: Processes, Deposits and Functions, 1st ed. (Amsterdam: Elsevier Science BV, 2002) 99 at 145. 293 SA, Integrated Coastal Management Act, supra note 54, s. 33(2).

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provisions of the Act directly and indirectly enumerate ways to deal with SLR. These provisions can be grouped under three broad adaption strategies: setback lines, rolling easements, and overlay zones. One of the most important tools for SLR adaptation is setback lines. To ensure public safety, and to preserve aesthetic values, and to protect the coastal zone and property, the MEC is empowered to establish or change coastal setback lines, which are set out in municipal zoning maps. These regulations can prohibit or restrict the construction of buildings wholly or partially seaward of the coastal setback line.294 Municipal CMPs are to address coastal erosion and accretion.295 The ICM Act provides that in cases where the HWM moves inland due to coastal erosion, SLR, etc., and remains so for three years, an owner looses ownership of land situated below the HWM, and is not entitled to compensation from the state.296 Essentially, these are rolling easements. The Minister (or delegate) can issue a coastal protection notice if an activity is deemed to be harmful to the coastal zone, in order to prohibit environmentally damaging activity and issue instructions to protect the area.297 Similarly, a repair or removal notice can be issued for a structure that has been unlawfully erected, constructed or upgraded, or has the potential to adversely impact the coastal environment.298 In certain situations, the Minister can temporarily occupy land (even private property) within the coastal zone to respond to emergency situations that affect the coastal zone. 6.3.3.5 Discussion Although it is early to draw conclusive lessons from the South African experience in ICZM, its coastal law is one of the finest attempts to capture the broad parameters of ICZM, and it sets out one of the most modern and forward-­looking ICZM laws in existence. A worthy precedent,299 it should influence similar legislative initiatives. It is particularly relevant to South Asia because it is integral to the nation’s effort to redress inequities in accessing 294 295 296 297 298 299

Ibid., s. 25(1)(b). Ibid., s. 49(2)(c)(v). Ibid., s. 14(5)(b). Ibid., s. 59. Ibid., s. 60. South Africa, Dep’t of Environmental Affairs, Media Release, “South Africa’s Integrated Coastal Management Act shortlisted for the 2012 World Future Policy Award for exemplary coastal and ocean policies” (5 September 2012), online: Dep’t of Environmental Affairs, Media Releases .

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coastal resources. Functionally, the law sets out an integrated, decentralized, ecosystem-based, adaptive and precautionary approach to coastal management with an aim to work toward sustainable coastal development. Another important feature of the South African legislative approach is that it incorporates CCCA responses to SLR. The approach is based on the fundamental principle that through efficient and integrated management, it is possible to reduce the impacts of non-climate stressors, such as habitat destruction, haphazard development, and land-based sources of pollution on the coastal environment. This increases the resilience of the coastal environment in coping with climate change impacts. The recent proposal to amend the ICM Act is a reminder that coastal law making is a complex endeavor that requires constant fine-tuning.300 On the whole, developing coastal states should be inspired to formulate ICZM legislation following the South African model. 6.3.4 New Zealand Urban development and related infrastructure in New Zealand is located primarily in its coastal areas.301 With rising sea levels, this infrastructure is vulnerable to coastal erosion and inundation. As elsewhere, climate change will also affect New Zealand’s coastal margins. Adapting to these risks is a significant challenge to the government and authorities with jurisdiction over the coastal zone. New Zealand’s comprehensive legally-mandated ICZM program is facilitated by its constitutional dynamic and the holistic approach it has adopted to resources management. Authority for ICZM flows primarily from the Resource Management Act, 1991 (RMA),302 which promotes “the sustainable management of natural and physical resources.”303 This path-breaking legislation was the product of one of the largest law reform exercises in this country.304 The Act has three striking features: 1) while the general legislative approach to natural resources management is to provide separate rules for the management of critical natural resources like land, air and water, the RMA lays down an 300 For the text see, National Environmental Management: Integrated Coastal Amendment Bill, 2013, Notice 1046 of 2012, online: South Africa Gov’t Online . 301 New Zealand, Ministry for the Envt, Coastal Hazards and Climate Change: A Guidance Manual for Local Government in New Zealand, 2d ed. (Wellington: Ministry for the Envt, 2008) at 1. 302 NZRMA, supra note 55. 303 Ibid., s. 5(1). 304 New Zealand, Ministry of the Envt, Your Guide to the Resource Management Act (2006), at 5, online: Ministry of the Envt .

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overarching framework for the management of all resources; 2) even though the country follows a unitary system of government,305 where the national government exercises control over natural resources, this statute devolves some control to local communities, viewing them as “the best judges of their own environmental problems, and how to go about dealing with them;” and 3) rather than laying down “hard and fast rules” regarding permissible activities, the RMA adopts an “effects based” approach, that is, the environmental effects of a proposed activity will be used to determine whether or not it can be approved or not.306 The RMA defines the “coastal marine area” as “the foreshore, seabed, and coastal water, and the air space above the water,” where the seaward boundary is the outer limits of the territorial sea and the landward boundary is the line of mean high water springs,307 integrating the land-sea boundary zone. New Zealand’s decentralised government system is reflected in the RMA308 through a partnership involving the Crown and the regional and district councils.309 The law also includes provisions for both mitigation310 and adaptation311 to climate change impacts. SLR is treated as a ‘natural hazard’ and falls within the ambit of the rules to respond to natural hazards.312 The Act also prohibits the dumping and incineration of wastes in the coastal marine area, unless permitted by a resource consent,313 and restricts certain uses in the coastal marine area, including prohibiting the depositing “in, on, or under any foreshore or seabed of any substance in a manner that has or is likely to have an adverse effect on the foreshore or seabed,”314 unless otherwise permitted. This provision can essentially restrict the ability of individual property owners to armour

305 See generally New Zealand, Constitutional Advisory Panel, New Zealand’s Constitution: The Conversation So Far (Wellington: Secretariat, Constitutional Advisory Panel, 2012). 306 NZRMA, supra note 55. 307 Ibid., s. 2. 308 Robert A Makgill & Hamish G. Rennie, “A Model for Integrated Coastal Management Legislation: A Principled Analysis of New Zealand’s Resource Management Act 1991” (2012) 27 Int’l J Mar & Coast L 135 at 147 [Makgill & Rennie, “A Model for ICM Legislation”]. 309 Cormac Cullinan, Integrated Coastal Management Law: Establishing and Strengthening National Legal Frameworks for Integrated Coastal Management, FAO Legislative Study, No. 93 (Rome: FAO, 2006) at 116. 310 NZRMA, supra note 55, s. 70A. 311 Ibid., s. 7(i). 312 Ibid., s. 2; see also ibid., ss. 30(1)(c)(iv) & 31(1)(b)(i). 313 Ibid., s. 15A, B & C. 314 Ibid., s. 12(1)(d).

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their property. The RMA embodies the ecosystem-based315 and precautionary approaches,316 seeks to maintain and enhance public access to the coastal marine area,317 protects customary rights318 and indigenous vegetation,319 secures public participation,320 and promotes a catchment-based approach.321 Importantly, the RMA calls for a New Zealand Coastal Policy Statement (NZCPS).322 To be issued by the Minister of Conservation in accordance with the broad principles provided in the RMA, the Statement guides local authorities in their day-to-day management of the coastal environment.323 It includes “objectives and policies” on a diverse range of issues, from implementing New Zealand’s international obligations relating to the coastal environment, to securing public access and protecting protected customary rights.324 The first NZCPS was issued in 1994 and was subsequently revised and updated in 2010 following an elaborate process of consultation and review.325 Most importantly with regard to CCCA, the NZCPS calls for coastal hazard risk management measures that take climate change impacts into account.326 The NZCPS underscores the need to adopt the precautionary approach for the “use and management of coastal resources potentially vulnerable” to climate change effects.”327 A range of response options to SLR are identified and grouped under two heads. The first options seek to protect existing development, and include relocation or removal of existing development or structures at risk.328 While emphasizing the role that natural defences can play in protecting the 315 Ibid., s. 5(2)(b)–(c); see also Makgill & Rennie, “A Model for ICM Legislation”, supra note 308 at 148. 316 NZRMA, ibid., s. 12(1). 317 Ibid., s. 229(b) (provides for an esplanade reserve or an esplanade strip to facilitate public access). 318 For instance, see ibid., ss. 6(e) & 85A; see also Attorney-General v Ngāti Apa [2003] 3 NZLR 643. 319 Ibid., s. 86B(3)(b). 320 For instance, see ibid. s. 39 (public hearings without unnecessary formality). 321 Makgill & Rennie, “A Model for ICM Legislation”, supra note 308 at 148–49. 322 NZRMA, supra note 55, s. 56. 323 Ibid., s. 57. 324 Ibid., s. 58. 325 See generally Johanna Rosier, Independent Review of the New Zealand Coastal Policy Statement: A Report Prepared for the Minister of Conservation (Palmerston North: Massey University, 2004). 326 New Zealand, Dep’t of Conservation, New Zealand Coastal Policy Statement 2010 (Wellington: Dep’t of Conservation, 2010) objective 5. 327 Ibid., policy 3. 328 Ibid., policy 27.

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coastal environment,329 the NZCPS recognizes the utility of hard protection structures where necessary to protect existing infrastructure.330 In such cases, shoreline hard armouring must minimise adverse effects on the coastal environment.331 The second options deal with future impacts. Here, the policy first calls for identification and prioritisation of areas likely to be affected by coastal hazards, including SLR over the next 100 years.332 Thereafter, it suggests risk reduction methods, including abandonment and managed retreat.333 Where land reclamation is necessary, the policy provides detailed rules on how it is to be carried out.334 6.3.4.1 Discussion The New Zealand experience on ICZM is comprehensive and the RMA propels this country onto a “sustainable management” trajectory.335 This legislation is based on the philosophy that all elements of the environment are interrelated and that natural resource management should be integrated.336 In addition, several prescriptions in the law support CCCA. While there is considerable merit in such an approach, and it is workable in New Zealand, it may be difficult to transplant certain aspects of this legal model to other coastal countries that have poor governance systems, like those in the South Asian region. There is the danger that coastal zone management and CCCA can get lost in a plethora of rules. Already, there have been amendments to the RMA and, in a South Asian context (as the Indian experience discussed previously reveals), frequent amendments can introduce long-term uncertainty into statute implementation. Furthermore, the New Zealand coastal management regime draws on other legislations as well.337

329 330 331 332 333 334 335

Ibid., policy 26. Ibid., policy 27(c). Ibid., policy 27(3). Ibid., policy 24. Ibid., policy 25. Ibid., policy 10. NZRMA, supra note 55, s. 5(2); see also Makgill & Rennie, “A Model for ICM Legislation”, supra note 308 at 144. 336 NZRMA, ibid., s. 30(1)(a), s. 31(1)(a); see also Makgill & Rennie, “A Model for ICM Legislation”, ibid. at 154. 337 For instance, see generally Marine and Coastal Area (Takutai Moana) Act 2011 (NZ), 2011/3; Building Act 2004 (NZ), 2004/72, s. 71; Robert A Makgill & Hamish Rennie, “The Marine and Coastal Area Act 2011” [2011] Resource Mgmt J 1; Makgill & Rennie, “A Model for ICM Legislation”, ibid. at 135, n. 51.

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In sum, while the RMA is definitely a comprehensive code on resources management, including coastal zone management, it may be difficult to replicate such a comprehensive approach in other countries, like those in South Asia where RMA-like legislations may not necessarily lead to effective coastal management. South Africa offers an example that may be a more suitable model for South Asia. South Africa has developed an overarching, integrative legal framework under its National Environmental Management Act, 1998. Several independent legal codes elaborate the rules relating to the different facets of resources management, including the ICM Act, 2008,338 under this overarching frame. Rather than clumping different aspects of resource management under a single piece of legislation (which, as mentioned above, may work in countries with developed systems of governance), the intricate and complex issues that managing each resource engages, demands devoted legislation under an integrated common framework. This way, ICZM law can respond more positively to coastal climate change related crises. Even so, that the New Zealand model recognizes customary rights, features a catchment-based approach, and institutionalizes decentralized coastal management, by these, it offers principles that coastal law reform and development in South Asia can benefit from. 6.3.5

Other Legislative Experiences on Coastal Management and Coastal Climate Change Adaptation

Canada Surrounded by the Arctic, Atlantic, and Pacific oceans, and the shores of the Great Lakes, Canada has more coastal area than any other country in the world.339 Nearly seven million Canadians live in coastal areas and many depend on ocean resources and services for their livelihood.340 338 As is evident from the title, the National Environmental Management: Integrated Coastal Zone Management Act, 2008, is a “specific environmental management Act” under the overarching umbrella legislation—the National Environmental Management Act 1998. Accordingly, the ICM Act has to be “read, interpreted and applied” in conjunction with the NEMA 1998. Furthermore, in case of conflicts relating to its implementation, the same has to be determined as per NEMA 1998. SA, Integrated Coastal Management Act, supra note 54, s. 5; see also National Environmental Management: Biodiversity Act, 2004, (S Afr), No. 10 of 2004, ss. 6, 7; National Environmental Management: Waste Act, 2008, (S Afr), No. 59 of 2008, s. 5; National Environmental Management: Protected Areas Act, 2003, (S Afr), No. 57 of 2003, s. 5. 339 Canada has the longest coastline in the world extending to 240,000 kilometers. Donald S. Lemmen & Fiona J. Warren, eds., Climate Change Impacts and Adaptation: A Canadian Perspective (Ottawa: Climate Change Impacts and Adaptation Directorate, 2004) at 115. 340 Ibid.

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Nearly 7,000 kilometers of the Canadian coastline is highly sensitive to SLR and other climate change impacts.341 Eighty per cent of the coastline of Nova Scotia, New Brunswick and Prince Edward Island are moderate to highly sensitive to SLR.342 In Charlottetown, Prince Edward Island, the sea level has risen by about 32 centimeters, since 1911, posing risks to urban infrastructure.343 In Newfoundland and Labrador, climate change has increased the potential of landslides putting coastal communities at the base of steep slopes to grave risk.344 SLR is predicted to overwhelm the 243 kilometers of dykes that protect an estimated 17,500 hectares of land in the Bay of Fundy region in Nova Scotia.345 In the Arctic coastal regions, the changes wrought by climate change and SLR will be more intense and far-reaching.346 Under the Canadian Constitution (the Constitution Act, 1867), the provinces and territories have jurisdiction over land through their powers over property and civil rights);347 and the federal government exercises jurisdiction over the ocean space that generally begins from the ordinary low water mark stretching seaward to the end of the exclusive economic zone.348 The division of legislative powers over the dry and wet segments of the coastal zone exerts tremendous influence in shaping ICZM development in Canada.349 As well, it emerges that in Canada, CCCA is part of a larger approach to integrated management as espoused by the Oceans Act, 1996 (Oceans Act).350 Pioneering legislation on oceans management, the Oceans Act is comprehensive and targeted to sustainable development of oceans and their resources and to this 341 This includes much of the maritime provinces, a large part of the Beaufort Sea coast and the Fraser Delta region of British Columbia. Ibid. 342 Ibid. at 118. 343 Ibid. at 119. 344 Ibid. at 120. 345 Our Coast: Live, Work, Play, Protect: The 2009 State of Nova Scotia’s Coast Technical Report, at 169, online: Nova Scotia: Canada [Nova Scotia’s Coastal Report]. 346 See generally Tim Williams, “The Arctic: Environmental Issues”, In Brief, Publication No. 2008–04-E, (Ottawa: Library of Parliament, 2008). 347 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s. 92(13), reprinted in RSC 1985, App II, No. 5. 348 Meinhard Doelle et al., “The Regulation of Tidal Energy Development Off Nova Scotia: Navigating Foggy Waters” (2006) 55 UNBLJ 27 at 36 (HeinOnline); see also Richard Kyle Paisley et al., “Integrated Coastal Management (ICM): A Brief Legal and Institutional Comparison Among Canada, the United States and Mexico” (2004) 9 Ocean & Coastal LJ 195 at 198–01 (QL). 349 Aldo Chircop & Ryan O’Leary, “Legal Frameworks for Integrated Coastal and Ocean Management in Canada and the European Union: Some Insights from Comparative Analysis” (2012) 13:3 Vt J Envtl L 425 at 432, n. 30 (HeinOnline). 350 Lemmen & Warren, eds., supra note 339 at 124; Oceans Act, SC 1996, c 31 [Oceans Act].

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end; it gives effect to an ecosystem and precautionary approach. From the perspective of coastal management, the law calls upon the Minister to take the “lead and facilitate the development and implementation” of a national strategy and integrated management plans for estuaries, coastal and marine waters, and coastal ecosystems.351 In developing these documents, the Minister must collaborate with the provincial and territorial governments, other agencies, ministries and departments and, of note, with affected Aboriginal peoples and coastal communities.352 The Oceans Act also provides for marine protected areas in the internal and territorial waters and in the exclusive economic zone.353 Pursuant to this legislative mandate, Canada has adopted an oceans strategy,354 which sets out “the overall strategic framework” for ocean-related programs and policies, and is guided by the principles of sustainable development, integrated management, and the precautionary approach.355 The strategy informs the development and implementation of integrated management plans. In recognizing that “ecosystems nest within other ecosystems,” the integrated management-planning framework as contemplated by the strategy extends from large ocean management areas (LOMAs)356 to small coastal management areas (CMAs).357 The primary intent of CMAs is to help communities play a stronger role in issues that affect their future.358 While most of these management issues fall within provincial, territorial or community jurisdiction, the federal Department of Fisheries and Oceans is the facilitator.359 Some of the provinces have taken the lead in coastal management and in implementing CCCA. And some of these efforts may mature into coastal legislations. For instance, Nova Scotia has gathered baseline data and developed a report that provides an overview of the province’s coastal areas and resources 351 Oceans Act, ibid., ss. 29, 31. 352 Ibid. 353 Ibid., s. 35. 354 See generally Fisheries & Oceans Canada, Canada’s Oceans Strategy: Our Oceans, Our Future: Policy and Operational Framework for Integrated Management of Estuarine, Coastal and Marine Environments in Canada (Ottawa: Fisheries & Oceans Canada, 2002) [Canada’s Oceans Strategy]. Canada has also adopted an Oceans Action Plan which propounds that “[i]ntegrated [m]anagement [p]lanning is at the heart of new, modern oceans governance and management.” Canada, Canada’s Oceans Action Plan: For Present and Future Generations (Ottawa: Communications Branch, 2005) at 13. 355 Canada’s Oceans Strategy, ibid. at i. 356 Ibid. at 16. 357 Ibid. at 19–20. 358 Ibid. at 19. 359 Ibid. at 20.

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and its overall state.360 Based on this, a coastal strategy has been developed that identifies six critical issues concerning coastal management including, SLR and storm events.361 Further, it spells out six actions to ensure that people and property are protected from coastal hazards.362 Local governments are also taking steps to implement CCCA. For instance, the Halifax Regional Municipality, Nova Scotia, has developed a Regional Municipal Planning Strategy, 2006, that recognizes the problem of rising sea levels and storm surges and, as an interim measure, prohibits all residential development on the coast within a 2.5-meter elevation above the ordinary HWM through the applicable land use by-law.363 Properly appreciated, Canada’s Oceans Act essentially seeks to provide a framework for modern oceans management.364 As good as it is as an oceans law, when viewed through a coastal law prism, its shortcomings are glaring. Some of its most striking limitations from this perspective are that 1) it does not define the term coastal zone; 2) measures to tackle SLR are conspicuous by their absence; 3) it offers limited means to resolve jurisdictional conflicts between the federal and provincial governments on coastal management issues; and 4) though there is provision for marine protected areas, these are mainly contemplated in ocean space with no connection to the coast or land. Thus, the Oceans Act, as presently cast, at best provides a foundation for the management of the wet side of the coastal zone, the ocean space. Overall, this law is inadequate to promote ICZM objectives and may not, stricto sensu qualify as a coastal law. This is not to suggest that the law totally dismisses ICZM objectives. It has several notable elements that can facilitate ICZM implementation that are instructive for coastal South Asia. Some of these are: emphasis on integration; estuarine management; creation of marine protected areas and their network; adoption of a principled approach to ocean management; creation of a national strategy; enhanced government coordination and stakeholder engagement; and the development of integrated management plans. Canada’s Oceans Act clearly supports marine spatial planning, without specifically mentioning this concept.365 As well, the tools it provides and the m ­ anagement 360 361 362 363 364

See generally Nova Scotia’s Coastal Report, supra note 345. See generally ibid. at 160, ch. 7. Ibid. at 14–15. Halifax Regional Municipality, Regional Municipal Planning Strategy (2006) at 29. Canada’s Oceans Strategy, supra note 354 at i–iv; see also Tim Hall et al., “Advancing Objectives-based, Integrated Ocean Management Through Marine Spatial Planning: Current and Future Directions on the Scotian Shelf off Nova Scotia, Canada” (2011) 15:2 J Coast Conservation 247 at 247–55. 365 Email from Scott Coffen-Smout (19 August 2013) [on file with the author].

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approaches it espouses facilitate linking ICZM with marine spatial planning to secure the sustainable use and management of ocean and coastal spaces.366 Another interesting facet of the Canadian approach is that though the federal government has not indulged in creeping jurisdiction, it is attempting to influence the management agenda for the land, when coastal zone management and CCCA are provincial domains. For example, Canada’s Oceans Strategy, developed at the federal level envisages a framework for integrated management that extends from LOMAs to CMAs and the memoranda of understanding entered into between the federal and provincial governments for coastal and oceans management.367 In sum, Canada’s approach is instructive, particularly to the federations in coastal South Asia that seek to implement ICZM and are constitutionally constrained by the split jurisdiction over the land-sea divide. Kenya SLR is already taking a toll on the 600 kilometer Kenyan coastline. In many areas, coastal fisheries have collapsed and life in fishing villages is increasingly difficult; villages with poor adaptive capacity rely on garbage to build sea walls to keep the rising sea at bay.368 ICZM initiatives in Kenya emerged from the 1993 Workshop and Policy Conference on Integrated Coastal Area Management in Eastern Africa, which recommended the establishment and development of ICZM for the multiple and complex issues facing the coastal zones of the region. Since then, Kenya has made rapid strides in operationalizing ICZM.369 Prior to this, Kenya enacted the Coast Development Authority Act, 1990, which

366 Gulf of Maine Council on the Marine Environment, Coastal and Marine Spatial Planning in the Gulf of Maine, online: Gulf of Maine Council on the Marine Environment ; see also Gulf of Maine Council on the Marine Environment, Coastal and Marine Spatial Planning: Committees and Programs, online: Gulf of Maine Council on the Marine Environment, Coastal and Marine Spatial Planning: Committees and Programs . 367 Already, the federal government and some of the provincial governments, like British Columbia, have entered into memoranda of understanding to overcome jurisdictional barriers that hamper implementation of integrated coastal management. In 2011, an MOU was entered into with Nova Scotia. Chircop & O’Leary, supra note 349. 368 Odhiambo Joseph, “Kenyan village battered by rising tides”, BBC News (6 February 2007) online: BBC News . 369 UNEP & NEPAD, Kenya, State of the Coast Report 2007: Towards An Integrated Management of Kenya’s Coastal And Marine Resources, Draft 1 (np, [nd]) at 90.

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provided for the establishment of the Coast Development Authority (CDA).370 The CDA has far-reaching authority including, acquisition of land,371 development of long-range development plans,372 and construction of works for the protection and utilization of water and the soil.373 Overall, these provisions can be interpreted as empowering the CDA to carry out armoring works to protect the coastal zone from SLR. However, it is the Environmental Management and Co-ordination Act, 1999, which specially provides the foundation for ICZM in Kenya. Section 55 obliges the authority to prepare a survey of the coastal zone and thereafter, based on the results, “an integrated national coastal zone management plan.”374 The national coastal zone management plan is to be reviewed at least every two years.375 Pursuant to this mandate, Kenya developed its first ICZM Action Plan for the period 2011–2015. The Action Plan identifies priority themes and activities that encompass CCCA, including “Environmental Risks and Management of Shoreline Changes.”376 Two strategic objectives have been proposed in this regard: minimizing shoreline change impacts and mainstreaming climate change mitigation and adaptation measures into coastal development plans and programs.377 The document identifies strategies to effectuate these objectives.378 Despite developing an ICZM Action Plan, the Kenyan regime may lead to gridlock since the plan finds its legal basis not on the coastal zone management legislation, but it draws legislative sustenance from the Environmental Management and Co-ordination Act, 1999. The incongruity of this disconnect between the coastal law and the coastal management plan, may become more evident once Kenya begins to implement its ICZM plan. Israel Seventy per cent of Israel’s population lives within 15 kilometers of the Mediterranean coastline, the economic nerve center of Israel. By 2050, the sea level along the Israeli coast is expected to rise by some 0.5 meter, and 370 Coastal Development Authority Act, 1990, (Kenya), No. 20 of 1990, pmbl. 371 Ibid., s. 16. 372 Ibid., s. 8(b). 373 Ibid., s. 8(g). 374 Environmental Management and Co-Ordination Act, 1999, (Kenya), No. 8 of 1999, s. 55(2), (4). 375 Ibid., s. 55(3). 376 Kenya, National Environment Management Authority, Integrated Coastal Zone Management Action Plan for Kenya, 2011–2015 (Nairobi: NEMA, [nd]) at 41. 377 Ibid. at 42. 378 Ibid. at 42–43.

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by 2100 it is expected to reach a meter.379 Apart from inundation and destruction of coastal property, there is also the possibility of increased cliff slumping and coastal aquifer contamination. Increasing sea surface temperatures are expected to spread invasive species.380 Coastal management and measures to adapt to climate change impacts in Israel have evolved primarily through the land use planning system. Early initiatives include the setting up of the Coastal Waters Committee under the 1965 Planning and Building Law, the establishment of inter-ministerial committees, creation of the Marine Pollution Prevention Fund, the development of environmental impact assessment regulations under the 1982 Planning and Building Law, and preparation of the 1983 Mediterranean Coast Masterplan.381 In 2004, Israel promulgated the Law for the Protection of the Coastal Environment, which defines “coastal environment” as the area that extends 300 meters inland and seaward to the limit of the territorial waters, including natural and landscape resources, cultural assets, and antiquities.382 Essential features of this coastal law include prohibiting and reducing damage to the coastal environment; securing a public right of way over the entire length of the shore area; imposition of fees for coastal environment protection; powers to remediate environmental damage; and appointment of inspectors to supervise compliance.383 The Israeli coastal law offers very little to facilitate CCCA apart from its emphasis on reducing or prohibiting damage to the coastal environment. However, the Israeli model is an excellent example of how a coastal law can focus on protecting cultural heritage, in particular antiquities, in the coastal zone. In other parts of the world, particularly in South Asia, coastal areas house archeologically important monuments and other structures that are rarely protected. Many archeological monuments and sites in this region are under threat .

379 Israel, Ministry of Environmental Protection, Israel’s Second National Communication on Climate Change Submitted under the United Nations Framework Convention on Climate Change (Jerusalem: Ministry of Environmental Protection, 2010) at 80. 380 Ibid. at 80–93. 381 See generally Valerie Brachya, “Integrated Coastal Management in Israel” in Biliana Cicin Sain, Igor Pavlin & Stefano Belfiore, eds., Sustainable Coastal Management: A Transatlantic and Euro-Mediterranean Perspective (Dordrecht: Kluwer Academic Publishers, 2002) 113; see also Stephen Fletcher, “The Evolution of Coastal Management Policy in the State of Israel” (2000) 24 Mar Pol’y 395 (ScienceDirect). 382 Law for the Protection of the Coastal Environment 2004 (No. 5764 of 2004, Israel), s. 2. 383 Ibid., ss. 3–6, 9, 12.

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from rising sea levels.384 Such conditions persist even though these countries are parties to the World Heritage Convention. The emphasis in Israeli law on cliff protection is also noteworthy as eroding wave and wind action can be expected to intensify due to SLR and other climate change processes. The South Asian coastal countries can benefit considerably from the Israeli example in regard to both concerns. Barbados The small island state of Barbados is one of the world’s most densely populated countries. As in other island states, the impacts of SLR that are of concern are coastal erosion, inundation, and saltwater intrusion into the coastal aquifers.385 Coastal erosion triggered interest in coastal management in the mid-1970s.386 The Barbados Coastal Zone Management Act, 1998, provides for more effective management, conservation and enhancement of coastal resources. It calls for the development of a coastal zone management plan and delimitation of coastal zone management areas.387 Drafted under the authority of the Director of the Coastal Zone Management Unit, these measures are subject to public enquiry and revision prior to implementation.388 The management plan is subject to review every five years,389 and all authorities are to have regard to this plan when exercising functions in relation to coastal zone management.390 The Act also provides for the preservation and enhancement of marine areas where underwater parks can be set up.391 It also includes measures for coral reef and beach protection; prohibits the use of explosives,

384 For instance, see Kem Lowry & H.J.M. Wickremeratne, “Coastal Area Management in Sri Lanka” in E.M. Borgese, N. Ginsburg & J.R. Morgan, eds., Ocean Yearbook 7 (Chicago: The University of Chicago Press, 1988) 263 at 275. 385 Christine Wellington & Rawleston Moore, eds., Barbados’ First National Communications to the United Nations Framework Convention on Climate Change (UNFCCC) (Barbados: Ministry of Physical Development Environment, 2001) at 26. 386 For more details, see Barbados, Coastal Zone Management Unit, History of the Coastal Zone Management Unit and the Development of the Process of Integrated Coastal Zone Management in Barbados online: CZMU, History . 387 Coastal Zone Management Act 1998 (No. 39 of 1998) part II. 388 Ibid., ss. 5 & 6. 389 Ibid., s. 11. 390 Ibid., s. 8. 391 Ibid., ss. 17–19.

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poisons or noxious substances for harvesting coral or fish; prohibits the fouling of the foreshore; and offers a scheme for offences and penalties.392 The primary weakness of the Barbados Coastal Zone Management Act, 1998, is its simpleness, which disables it from being a model for countries that have more complex systems of governance. As well, it does not provide any specific and direct measures for CCCA. However, its provisions for beach and coral reef protection indirectly contribute to the cause. Notable and relevant to coastal South Asia are its provisions on public participation. Cuba With a coastline of 5,746 kilometers, including more than 4,000 keys and islets and unique coastal biodiversity, Cuba will be affected by SLR,393 and by more frequent natural disasters like hurricanes.394 Decree-Law 212, “Coastal Zone Management”395 (currently under review), establishes the boundaries of the coastal zone and the zone of protection on the basis of coastal typology.396 It emphasizes “protection and sustainable use of the coastal zone” in accordance with ICZM principles.397 The Ministry of Science, Technology and Environment is the primary authority that administers the coastal law,398 while the Ministry of Economics and Planning is responsible for national land use policy, establishes coastal zone boundaries, and controls land use and urbanization in the coastal zone.399 The Decree secures fee-free public right to unrestricted use of the coastal zone for common purposes,400 envisages a special environmental regulatory regimen for keys and peninsulas, and establishes a system of land-based and marine signals prior to the execution of any construction project or activity that affects the coastal zone or the zone of protection.401 Article 15.1 states that “[t]he coastal zone shall preferably 392 Ibid., ss. 22–29. 393 See generally Daniel Whittle & Daylin Muñoz-Nuñez, “Sea Level Rise Policies in Cuba” (PowerPoint presented to the International Conference on Sea Level Rise in the Gulf of Mexico, Corpus Christi, Texas, 1–3 March 2010). 394 Ibid.; Oxfam, The Climate Changes, Threatens and Demands Adaptation: A Look at the Cuban Experience of Protection against Climate Change, Oxfam Research Report (np, Oxfam International, 2010) at 14. 395 See generally Decree-Law Number 212: Coastal Zone Management, 8 August 2000 (Cuba). 396 See generally ibid., ss. 2 & 3. 397 Ibid., art. 1. 398 Ibid., art. 7; see also Ibid., art. 8. 399 Ibid., art. 9. 400 Ibid., ch. III. 401 Ibid., art. 23.1–4.

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remain unoccupied, authorization given only for the development or the execution of activities or facilities that due to their own nature do not allow any other location . . .” Article 16 prohibits certain activities in the coastal zone, like extraction of aggregates and final disposal of solid and liquid wastes, while the construction of new facilities is subject to stated conditions and permissions.402 Furthermore, works to protect against SLR must not damage the coastal zone or affect beaches403 or pollute the marine environment or alter water flow.404 The Cuban coastal law also recognizes the dynamic nature of the coastal environment. Accordingly, coastal zone boundary determination is not static; it is often revised by reference to the typology of coastal features like beaches, river mouths, and cliffs. The law prescribes varying distances from each particular feature to fix the coastal boundary; for example, the coastal zone extends 300 meters inland from the mouth of a river, and only 20 meters inland from a coastal cliff summit that is not submerged by tides or penetration by the sea.405 It is commendable that Barbados and Cuba, both small island developing states (SIDS), that have comparatively poor land to coast ratios have dedicated coastal laws to predicate their coastal management efforts. The efforts of these two SIDS to secure coral reef protection, and to deal with SLR do serve as good focus issues for the small island developing state in South Asia, the Maldives, and to the island nation of Sri Lanka. Belize With 50 per cent of its population settled along its 220 long kilometer coastline,406 the coastal regions and their resources are crucial to the development of Belize. This coast is predominantly low-lying, increasing the vulnerability of the country’s coastal communities407 and economy to SLR and other climate change impacts.408 Tropical cyclones hit the land with ­increasing 402 403 404 405

Ibid., arts. 16–17. Ibid., art. 20(a). Ibid., art. 20(c). Decree-Law Number 1: Concerning the Breadth of the Territorial Sea of the Republic of Cuba, 24 February 1977 (Cuba), art. 4. 406 Belize, Ministry of Forestry, Fisheries, & Sustainable Development Belize Integrated Coastal Zone Management Plan (Coastal Zone Management Authority & Institute, 2013) at 119 [Belize ICZM Plan]. 407 Belize, Second National Communication to the Conference of the Parties of the United Nations Framework Convention on Climate Change (Belmopan, 2009) at 59. 408 Belize ICZM Plan, supra note 406 at 118. Climate change is adversely affecting the economic prospects held out by coastal tourism. Snorkeling and diving and other activities will be impacted due to heat stress, erosion and declining reef health. Ibid. at 118 & 199.

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f­requency and their intensity in degree is expected to increase.409 Rising sea surface temperatures have led to large-scale coral bleaching events, reducing the presence of commercial fish spawning aggregations.410 The Belize barrier reef reserve system, a renowned world heritage site, is under considerable stress from climate change, overfishing, unsustainable development practices, disease, and pollution.411 Belize’s 1999 Coastal Zone Management Act 412 defines the coastal zone as “the area bounded by the shoreline up to the mean high-water mark on its landward side and by the outer limit of the territorial sea on its seaward side, including all coastal waters.”413 This statute provides for the creation of a Belize Coastal Zone Management Authority (Belize CZMA).414 Key functions of this Authority are the preparation and review of the coastal zone management plan, guidelines development, and advisory functions.415 This law also creates the Coastal Zone Management Institute, which supports the University of Belize in developing educational programs on coastal zone management.416 The 2013 Integrated Coastal Zone Management Plan, the heart of the Act,417 was developed through incremental steps, beginning with a strategy outlining over-arching national objectives. The Plan envisions a “sustainable future where healthy ecosystems support, and are supported by thriving local communities and a vibrant economy.”418 CCCA is an essential component of the plan. Climate change adaptation measures are to be included in strategic management plans by all sectors and it is encouraged through inter-agency cooperation, public awareness campaigns, and developing the capacity of the Belize CZMA and the Institute.419

409 Ibid. at 114. 410 Ibid. at 118. 411 See generally Climate Justice, Petition to the World Heritage Committee Requesting Inclusion of Belize Barrier Reef Reserve System, in the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures & Actions (15 November 2004), online: Climate Justice, Belize, UNESCO cases . 412 Coastal Zone Management Act, (Belize), No. 5 of 1998. 413 Ibid., s. 2. 414 Ibid., s. 3. 415 Ibid., s. 5. 416 Ibid., s. 10(c). 417 Ibid., s. 23. 418 Belize ICZM Plan, supra note 406 at 134. 419 Ibid. at 120.

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The Belize coastal law has several interesting features, the most important being the linkage between the coastal law and the ICZM plan, which has CCCA as a prime area of focus. The experience from Belize reveals that developing an ICZM plan is no easy task; it took almost 15 years from inception before the plan was released. For coastal South Asia, Belize’s emphasis on developing capacity, as ordained by the coastal law, including university level educational programs on coastal management, highlights an instructive example of a pathway to follow in order to build capacity and to spread the message of coastal management and conservation. United Kingdom Presently, the UK comprises four countries, namely, England, Scotland, Wales and Northern Ireland. Since 1991, powers have been devolved to Scotland, Wales and Northern Ireland, and significant strides have been made to decentralize power to local governments.420 In addition, the overarching frame of the European Union also has a perceptible impact on the evolving constitutional rearrangement in this country. These changes have significantly diluted the unitary character of the UK, even though it is not quite federal, and these have impacted ICZM implementation in the UK. Its adoption of the European Union Recommendation on Integrated Coastal Zone Management in 2002 popularized ICZM efforts in the UK, especially the requirement that member states develop national strategies and report on progress to the European Commission by 2006.421 Since then, ICZM efforts have matured and each of the four constituent countries have tailored solutions to deal with problems in their coastal zones.422 One ICZM initiative has been the development of “a strategy for promoting an integrated approach to the management of coastal areas in England,”423 which seeks to integrate coastal policies and provide a clear strategic direction to coastal managers. The enactment of the Marine and Coastal Access Act, 420 For instance, see generally Localism Act 2011 (UK), c 20. 421 EC, Recommendation of the European Parliament and of the Council of 30 May 2002 Concerning the Implementation of Integrated Coastal Zone Management in Europe, (2002/413/EC) [2002] OJ L 148/24, ch. VI. 422 Welsh Gov’t, Making the Most of Wales’ Coast: The Integrated Coastal Zone Management Strategy for Wales (2007), online: Welsh Government ; UK, Dep’t of the Envt, Northern Ireland, Marine Bill, online: DOENI, As Introduced, ; Marine (Scotland) Act, ASP 2010, c 5. 423 See generally UK, DEFRA, A Strategy for Promoting An Integrated Approach to the Management of Coastal Areas in England (London: Dep’t for Environment, Food & Rural Affairs, 2008).

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2009,424 which indirectly supports ICZM and climate change adaptation in the marine area, is one of the most important legal developments in this regard. This Act provides for the preparation of marine policy statement and marine plans,425 marine licensing,426 designation of marine conservation zones and networks,427 and coastal access.428 The provisions on marine nature conservation and fisheries help to ensure that marine ecosystems are resilient to climate change impacts, and the focus on developing renewable energy projects enhances mitigation of climate change effects.429 A plethora of other legislation supports CCCA, including the Climate Change Act, 2008,430 which calls on the Secretary of State to develop programs on climate change adaptation.431 With the completion of a UK Climate Change Risk Assessment,432 a national adaptation program is presently under development.433 Other unique UK CCCA measures include a flood management program and coastal erosion risk management strategy under the Flood and Water Management Act, 2010.434 The Strategy calls for the development of shoreline management plans.435 The UK has adopted a comprehensive approach to ICZM implementation via the Marine and Coastal Access Act, 2009. Even though it does not 424 425 426 427 428 429 430 431 432

(UK), c 23. See generally Ibid., ss. 49, 50 & 51. Ibid., part 4. Ibid., ss. 116 & 123. Ensuring coastal access is a stirking feature of this law. Ibid., s. 296. Ibid., parts 5–7. See generally Climate Change Act 2008 (UK). Ibid., s. 58. See generally DEFRA, UK Climate Change Risk Assessment: Government Report (Norwich: The Stationery Office, 2012). 433 For more details, see National Adaptation Programme, online: GOV.UK, Climate Change, Adapting to Climate Change, Detail: National Adaptation Programme . 434 (UK), c 29, s. 7(1). The Environment Agency must report to the minister about flood and coastal erosion risk management. Ibid., s. 18(1); see also UK, DEFRA & EA, “Understanding the Risks, Empowering Communities, Building Resilience: The National Flood and Coastal Erosion Risk Management Strategy for England Presented to Parliament pursuant to Section 7 of the Flood and Water Management Act 2010” (np, 2011). 435 UK, DEFRA, Adapting to Coastal Change: Developing a Policy Framework (London: Dep’t for Environment, Food & Rural Affairs, 2010) at 11; UK, Houses of Parliament, “Sea Level Rise”, Post Note, No. 363 (2010) at 4. For an overview of the different shoreline management plans, see Shoreline Management Plans—the second generation (SMPs), online: Environment Agency, Research, Planning .

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deal directly with ICZM, it envisages a holistic and integrated management of the UK coast through novel legislative tools like marine spatial plans and the creation of networks of marine protected areas. This law also indirectly addresses CCCA. A lesson that South Asia can take from the UK structure is flood management in the coastal zone. This is particularly useful for a country like Bangladesh, large parts of whose landmass is submerged under the water almost every year. 6.3.5.1 Discussion From the above tour d’horizon on the legislative experiences on coastal zone management, it is clear that states differ in how they approach ICZM and CCCA. While some of the coastal laws are mundane, and couched in generalities, others are detailed legal codes that offer comprehensive guidance for coastal zone management. Some of the legal regimes are also quite outdated and out of step with current realities. Some specifically deal with SLR and CCCA, and others are more indirect. From the perspective of ICZM implementation, both federal and unitary states exhibit some ICZM implementation difficulties. Federal states, due to split jurisdiction over the land-sea continuum, generally find themselves jurisdictionally handicapped in implementing measures to promote land-sea integration. For unitary states, the primary difficulty is centralization of authority. Apart from New Zealand and the UK, most of the unitary states examined here have not been able to decentralize ICZM implementation. Public participation and the involvement of local communities is sine qua non for the success of ICZM programs and for augmenting adaptive capacities, and coastal laws must make functional provisions for this in both unitary and federal political systems. The various case studies of the coastal countries above show that irrespective of the simple or sophisticated nature of the legal regime on ICZM, certain law-making approaches are noticeable: 1) a national legislative approach, which can be sub-classified into three—a unified national legislation, usually providing for a single ICZM plan based on that legislation for the whole country;436 a more cooperative approach where the federal and provincial governments legislate on coastal management, and where the provinces pattern their coastal law on the national legislation;437 and the case where states/provinces have enacted coastal legislations and the national government assumes a more 436 As seen, this is usually the case in unitary systems like Sri Lanka, New Zealand, Barbados. Despite being a federation, India and South Africa also have unified coastal laws. 437 For more on the cooperative approach as followed in the US, see discussion, above.

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active438 or a passive role;439 2) ICZM is mandated as part of a comprehensive scheme for natural resources management;440 3) the coastal law is geared primarily towards land use planning/zoning;441 4) the emphasis of the law is on resources utilization;442 5) the law emphasizes a people-oriented approach to coastal management and decentralizes coastal governance.443 These five variations do not exhaust the models. Nor can the various approaches be strictly pigeonholed because of the diversity of issues that a coastal law deals with. Nevertheless, based on their most salient features, the coastal laws examined above (and in the previous chapters) can be represented as in the table below. Table 2

Selected Coastal Laws and their Defining Features

Coastal Law

Defining Features

Australia

Framework for a National Cooperative Approach to Integrated Coastal Zone Management, 2003

Queensland Coastal Protection and Management Act, 1995

Protecting life & property from coastal hazards; Climate change to be considered in preparing state coastal management plan; Constitution of coastal management districts & erosion prone areas; prohibits damaging coastal vegetation & dunes; local govt. to determine the nature of coastal development

438 For instance, in Australia, the Commonwealth has developed guidelines on ICZM implementation to work a unified vision. See discussion, above. 439 For instance, in Pakistan, the states of Sindh and Balochistan have enacted their own coastal laws and the role of the federal government is more passive. For more details, see Ch. 3, Part 3.2.2. 440 For instance, the sustainable development oriented approach is evident in the NZRMA. The United Kingdom Marine and Coastal Access Act, 2009, reflects marine spatial planning approach. 441 For instance, see generally Coastal Regulation Zone Notification (N, SO19(E), 2011, India). 442 Coast Conservation Act 1981 (No. 57 of 1981, Sri Lanka), as amended by Coast Conservation (Amendment) Act 1988 (No. 64 of 1988, Sri Lanka) and Coast Conservation (Amendment) Act 2011 (No. 49 of 2011, Sri Lanka). 443 See the experiences of South Africa and New Zealand above, for more on this point.

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Defining Features

New South Wales Coastal Protection Act, 1979

Preparation of coastal zone management plans; Risk management from coastal hazards and climate change impacts; Temporary coastal protection works; Local Councils to determine SLR benchmarks Barbados Coastal Zone Management Act, Coastal zone management plan; Coral reef & beach protection; Prevents fouling of 1998 foreshore Belize Coastal Zone Management Act, 2000

Canada Oceans Act, 1996 Cuba Decree-Law Number 212–2000

European Union Recommendation on ICZM, 2002 European Union: Directive of the European Parliament and of the Council Establishing a Framework for Maritime Spatial Planning and Integrated Coastal Management, 2013 (proposed) India Coastal Regulation Zone Notification, 2011

Israel Law for the Protection of the Coastal Environment, 2004

Establishment of Coastal Zone Management Institute to carry out research & support academic programs on coastal management Oceans strategy; Integrated approach to oceans management; Network of marine protected areas; Nested approach Public access; Variable definition of the coastal zone; Environmental regulatory regimen for keys & peninsulas; Protective works so that SLR does not damage the coastal zone Eight ICZM principles; National stocktaking & development of national strategies Linking marine spatial planning with ICZM; Integrated coastal management strategies to account for mitigation & adaptation to climate change; Public participation; Cooperation with member states & other countries Zoning; Marine pollution control; Public access; Protection of critically vulnerable coastal areas; Hazard Lines determination as a response strategy to SLR Protection of antiquities and cliffs

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Table 2 (cont.) Coastal Law

Defining Features

Kenya Coast Development Authority Act, 1990

Coast Development Authority

Environmental Management and Co-ordination Act, 1999

Survey & the Development of an Integrated National Coastal Zone Management Plan (ICZM Action Plan for 2011–2015) Island management; Setback lines, no-construction zones; Public ­participation; Transboundary Environmental Assessments; Development & implementation of a common regional ICZM framework Sustainable management; Controls on incineration & dumping & on noise; Climate change mitigation; Restrictions on the use of the coastal marine area; Provision for Coastal Policy Statement, & regional coastal plans

Mediterranean Protocol on ICZM, 2008

New Zealand Resource Management Act, 1991

Pakistan

Sindh Coastal Development Authority Act, Preparation of Master Plan; Acquisition of property 1994 Balochistan Coastal Development Authority Act, 1998

South Africa National Environmental Management: Integrated Coastal Management Act, 2008

Balochistan Coastal Development Authority; the Chief Minister of the Province plays an important role; Applies to 30 kilometers inland from the tide line Sustainable coastal development; Public trust; Public access; Marine pollution; Zoning overlay; Setback lines; Decentralised coastal management; Estuarine management

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Coastal Law

Defining Features

Sri Lanka Coast Conservation and Coastal Resource Management Act 1981 (as amended in 2011)

Coastal zone vests in the Republic; Permit system; New tools like Coastal access plan; Identification of affected areas, beach park, special management areas; ­prohibition of coral mining & filling up of land & water bodies; Spatial integration Marine policy statement & marine plans; Marine licensing; Marine conservation zones & networks, & Coastal access Cooperative coastal federalism; Federal consistency; Preparation of CZMP’s and their funding

United Kingdom Marine and Coastal Access Act, 2009

US Coastal Zone Management Act, 1972

California Coastal Act, 1976

Decentralized format; Local coastal programs; Protection of the marine environment; Hard armoring in certain cases

Texas (Coastal Coordination) Act 1991; Dune Protection Act, 1973; Open Beaches Act, 1959; and Coastal Erosion Planning and Response Act, 1999

Several legislations on coastal ­management; Rolling easements; Texas Coastal Management Program; Dune Protection; Public Access

The jurisdictions studied also demonstrate different degrees to which they combine ICZM and CCCA in their coastal legislation. They demonstrate also understanding of ICZM and adaptation in terms of their needs and development imperatives. This chapter and the previous ones clearly reveal that nations have their own understanding of what coastal zone management and CCCA are, depending on their needs and development imperatives. Consequently, some of the regimes do not reflect ICZM objectives in their true sense.444 But together, they all speak to a core set of principles and measures 444 Even though Sri Lanka has a pioneering coastal legislation, the fact that it does very little to further decentralization considerably waters down its effectiveness as an ICZM law. For more details on this topic, see Ch. 3, Part 3.2.4.

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that represent the frame of an ICZM-friendly coastal law that is also promotive of CCCA. These core markers are what must inform ICZM law reform and development in South Asia. 6.4 Conclusion Two points clearly emerge from the above analysis. The first is that though there are countless conventions and soft-law instruments that underscore the importance of ICZM, they are largely exhortative and barely mandate practical steps for states to apply toward sustainable coastal development through ICZM. This means that an international instrument that prescribes basic principles of ICZM and CCCA would be a welcome and helpful guide, especially for developing coastal states. Second, that laws and legislative frameworks play an important role to promote and facilitate ICZM and CCCA implementation cannot be overemphasized. Mooring an ICZM process onto a dedicated legal framework will help to implement CCCA and rectify the dystopian management scenario that characterizes the South Asian coastline at present. What the salient content of such laws should be in this region is discussed in the subsequent chapters.

chapter 7

Law in the Service of ICZM and Coastal Climate Change Adaptation 7.1 Introduction In early ICZM initiatives, the importance of law and legal frameworks was not appreciated. As such, ICZM was left to technocrats, resource managers, and scientists, who believed that ICZM was essentially a scientific or a management process.1 Though science and management are definitely two core pillars of an ICZM program, there is a third—law.2 Non-recognition of law’s organizing and mandating role in coastal management programs and plans have hampered implementation progress. This chapter explains the role of law in operationalizing ICZM and coastal climate change adaptation (CCCA). Section 7.2, offers a theoretical rationale for law and dedicated coastal law statutes to support the management of coastal areas and resources. Among others, it draws on Garrett Hardin’s “tragedy of the commons” and Elinor Ostrom’s “polycentrism” to articulate the relevance of law in coastal management. In Section 7.3, a “Strength, Weaknesses, Opportunity and Threats” (SWOT) analysis is carried out to assess the prospect of implementing ICZM and to achieve CCCA objectives for sustainable coastal development (SCD) through the instrumentality of law. Section 7.4 analyzes some of the trends in coastal law-making and assesses future prospects. The conclusion reiterates the need for dedicated legal instruments to support ICZM implementation and CCCA. 7.2

Law for Coastal Zone Management: Theoretical Considerations

Particularly from a South Asian point of view, coastal commons management theorizing will benefit from Garrett Hardin’s, “tragedy of the commons” 1 Robert Beckman & Brady Coleman, “Integrated Coastal Management: The Role of Law and Lawyers” (1999) 14:4 Int’l J Mar & Coast L 491 (HeinOnline). 2 See generally Cormac Cullinan, Integrated Coastal Management Law: Establishing and Strengthening National Legal Frameworks for Integrated Coastal Management, FAO Legislative Study, No. 93 (Rome: FAO, 2006).

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004282209_�08

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metaphor that draws attention to the need for common property resources, res communis management and from theories on welfarism. This is singularly because there are no more than rudimentary legal nods to SCD in the region. As well, the welfare of the millions who depend on the coastal resources and amenities here does not really inform the governance of the coastal zones. Garrett Hardin’s metaphor is traceable to Aristotle’s observation that whatever “is common to the greatest number has the least care bestowed on it,” because “[e]veryone thinks chiefly of his own, hardly at all of the common interest.”3 Hardin’s thesis revolutionized ideas relating to common property resources management. He believed that when individuals act in self-interest to maximize profits from the use of a common resource, they will destroy the collective wealth, since they have no incentive to conserve and protect the resource.4 The tragedy of the commons envisages a situation that teaches us that self-interested individuals will consume, deplete and degrade a common resource that belongs to all, right up to the point of its disintegration. In other words, all bear the external cost of the exploitative actions of an appropriator who indulges in over-exploitation to the detriment of all others, just to enjoy the benefits alone.5 Hardin’s commons metaphor has been applied to explain the degradation of a wide variety of common property resources such as fisheries,6 forests,7 water resources,8 and even to spectrum9 and knowledge10—resources used by all, yet, which none can truly claim as his or her own. Hardin illustrates the tragedy by painting a pastoral setting for cattle grazing. To draw maximum advantage of the free-grazing opportunity, cattle owners have an incentive to increase the size of their herds.11 At some point, the 3 Aristotle, Politics, HWC, Davis, ed., translated by Benjamin Jowett (New York: Cosimo Classics, 2008) at 57. 4 Shi-Ling Hsu, “What is a Tragedy of the Commons? Overfishing and the Campaign Spending Problem” (2005) 69 Alb L Rev 75 at 78–79 (QL). 5 Ibid. at 77. 6 Ibid. 7 See generally Kirsten Westerland, “Nepal’s Community Forestry Program: Another Example of the Tragedy of the Commons or a Realistic Means of Balancing Indigenous Needs with Forestry Conservation” (2007) 18 Colo J Int’l Envtl L & Pol’y 189 (HeinOnline). 8 Tony George Puthucherril, “Riparianism in Indian Water Jurisprudence” in Ramaswamy R. Iyer, Water and the Laws in India (New Delhi: SAGE Publications Pvt Ltd, 2009) 97 at 116. 9 See generally Philip J. Weiser & Dale N. Hatfield, “Policing the Spectrum Commons” (2005) 74 Fordham L Rev 663 (HeinOnline). 10 For more details, see generally Charlotte Hess & Elinor Ostrom, eds, Understanding Knowledge as a Commons: From Theory to Practice (Cambridge: MIT, 2007). 11 Garrett Hardin, “The Tragedy of the Commons” (1968) 162:3859 Sci 1243 at 1244 (JSTOR).

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aggregate effect of such individual decisions is that the grazing exceeds the capacity of the commons, and degradation sets in.12 By continuing to increase the number of animals which graze on the commons, the benefit derived from the grass eaten by each additional animal goes entirely to the animal owner (the appropriator), but the ‘externalized costs’ or ‘the burden’ which ensues is shared by all persons who use the commons.13 Thus, allowing people unlimited use of common resources can lead to the degradation and destruction of the resource. To quote Hardin: [t]herein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit—in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.14 Experiences with natural resources management, particularly in South Asia, have borne out Hardin’s theory.15 If natural resources are held in common, costs and benefits get externalized, leading to wastage.16 Hardin does not believe that such a tragedy can be avoided solely through the efforts of a few conscientious and responsible citizens. To avert and overcome the depletion of the commons, Hardin advocates the need to put in place coercive laws and taxing devices to ensure protection of common property.17 In his words, “if ruin is to be avoided in a crowded world, people must be responsive to a coercive

12 Ibid. 13 Ibid. 14 Ibid. 15 Tony George Puthucherril & Lekshmi Vijayabalan, “The Law and Practice on Ground Water Conservation and Management—A Case Study with Specific Reference to the State of Kerala” (Paper delivered at the National Workshop on Water Quality Management and Conservation: Role of the Legal System, National Law School of India University, Bangalore, 16 August 2002) [unpublished]. For more details on the over-exploitation of groundwater commons, see also Ch. 2. 16 Richard J. Pierce, “State Regulation of Natural Gas in a Federally Deregulated Market: The Tragedy of the Commons Revisited” (1987) 73 Cornell L Rev 15 at 16 (QL). 17 Kirsten Westerland, “Nepal’s Community Forestry Program: Another Example of the Tragedy of the Commons or a Realistic Means of Balancing Indigenous Needs with Forestry Conservation?”, Note & Comment, (2007) 18 Colo J Int’l Envtl L & Pol’y 189 at 195 (QL).

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force outside their individual psyches, a ‘Leviathan,’ to use Hobbes’s term.”18 In fact, Hardin offered two options to correct the tragedy—privatization or government intervention.19 His argument is that open access need not result in overexploitation and degradation; but when measures are not put in place to regulate access, overexploitation sets in. In other words, unregulated open access has the potential to lead to resource overexploitation and abuse. Indeed, it has been suggested that a more appropriate euphemism for Hardin’s thesis is the “tragedy of a mismanaged commons.”20 While law has traditionally been vigorous to protect and secure bodily integrity and private property rights, it has been slow to secure the commons. Nevertheless, government regulation through the instrumentality of law is an important pathway to prevent the tragedy of rapacious exploitation and degradation of the common pool.21 Law is an essential tool to regulate human activities, to prevent competition, free-riding, and over-harvesting. This is the rationale behind the enactment of wildlife protection laws, forest conservation laws, fisheries legislations, and water laws. Coastal law is, and must be no exception. Apart from legal regulation of the commons, Hardin also advocated privatization of common property as a tool to overcome the tragedy.22 In support, it is argued that “the only way to avoid the tragedy of the commons in natural resources and wildlife is to end the common-property system by creating a

18 G. Hardin, “Political Requirements for Preserving our Common Heritage” in H.P. Brokaw, ed., Wildlife and America: Contributions to an Understanding of American Wildlife and its Conservation (Washington DC: Council on Environmental Quality, 1978) 310. 19 Charlotte Hess & Elinor Ostrom, “Introduction: An Overview of the Knowledge Commons” in Charlotte Hess & Elinor Ostrom, eds, Understanding Knowledge as a Commons: From Theory to Practice (Cambridge: MIT, 2007) 3 at 11 [Hess & Ostrom, “Introduction”]. 20 Bonnie J. McCay, Oyster Wars and the Public Trust: Property, Law, and Ecology in New Jersey History (Tucson: University of Arizona Press, 1998) at 189. 21 Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action, Political Economy of Institutions and Decisions (New York: Cambridge University Press, 1990) at 8–9 (providing an overview of opinions by different authors on the need for greater government control on natural resource systems); see also Amy Sinden, “The Tragedy of the Commons and the Myth of a Private Property Solution” (2007) 78 U Colo L Rev 533 at 553 (HeinOnline). 22 For instance, in the province of Nova Scotia in Canada, private owners own nearly 80 per cent of the coast. Nova Scotia, Coastal Development: The 2009 State of Nova Scotia’s Coast Report, online: Nova Scotia Canada, State of the Coast Report, Coastal Development .

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system of private property rights.”23 However, privatization of common property resources is not akin to privatizing a utility like a state-owned airline company. Privatizing the commons can accentuate economic and social inequities and throw life out of gear for millions, particularly in South Asia. Already, the coastal communities in this region are struggling to ensure that they continue to enjoy public access to coastal spaces.24 As well, to ensure SCD, it is necessary that the commons, which in many countries is increasingly passing into private hands, be managed in a manner that furthers “the greatest happiness of the greatest number.”25 Benefit-maximization lies at the heart of the utilitarian principle. Even though, it is a theory of welfare, utilitarianism is implicitly unjust in the context of the distribution of scarce resources. Between two claimants for a resource, utilitarianism informs us to prefer the one who stands to draw the maximum benefit from the resource.26 Hence the appeal of egalitarian welfarist theories which give “absolute priority . . . to improving the welfare of someone who is worse off, as opposed to improving the welfare of someone who is better off.”27 Here, “prioritarianism,” which seeks to mix the benefit-maximizing principle of utilitarianism with the equalizing principle of welfare egalitarianism, assumes relevance.28 To put prioritarianism into practice in a coastal zone context, a coastal law must be interposed and implemented with the objective to ensure maximization of benefits but by giving equal weight to the welfare of all, particularly to the welfare of impoverished coastal communities. If coastal law promotes the common good of the coastal community, it will serve the purposes of social welfare legislation. In contrast to Hardin’s propositions, Elinor Ostrom, a leading scholar on common property resources, contends that individuals naturally organize 23 Ostrom, supra note 21 at 12 (quoting Robert J. Smith who states that the only way to avoid the tragedy of the commons in natural resources is to create private property rights). 24 Ibid. at 22. In India, since time immemorial, common lands have inhered in village communities. Even when states passed legislations that expressly vested such lands in the state, the implied understanding was that this did not per se divest the common rights of villagers over the land. Jagpal Singh v Punjab, (2011) [2011] (11) SCC 396 (India SC). 25 Jeremy Bentham, J.H. Burns & H.L.A. Hart, A Fragment on Government (Cambridge: Cambridge University Press, 1988) at xiv. 26 Mark S. Stein, “Nussbaum: A Utilitarian Critique” (2009) 50:2 BCL Rev 489 at 490, 493 (HeinOnline) (referring to utilitarianism as the unweighted maximization principle); see also Selene Brett, “Rawls Theory of Justice and His Criticism of Utilitarianism” (1994) UCL Jurisprudence Rev 59 at 65–66 (HeinOnline). 27 Stein, ibid. at 492. 28 Ibid. at 493.

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themselves on the basis of internally agreed-upon rules.29 In so doing, they resolve common-pool resource problems without the dominance of a central government, or by reliance on private property rights to ensure sustainable management of resources.30 Based on this premise, Ostrom advocated a third solution to ensure the sustainable utilization of commonly held resources without degrading them—management by the community, or “polycentrism.”31 By utilizing the “institutional analysis and development framework,”32 she identifies eight design principles that can underline successful commons selfgovernance: 1) a clearly demarcated common property resource; 2) the necessity for congruence between governance structure, attendant rules and local needs and conditions; 3) the participation of most resource appropriators in decisions made through collective-choice arrangements; 4) a system for selfmonitoring the behavior of members; 5) punishment of violations with graduated sanctions; 6) low-cost and easy-to-access conflict resolution mechanisms to address issues; 7) the acknowledgement by external authorities of resource appropriators’ right to self-govern; and 8) the organization and enforcement of rules through multiple layers of nested enterprises in the case of larger common-pool resources.33 Prior to colonization, most non-Western societies, like those in South Asia, were grounded in the concept of communal, rather than individualistic rights, and activities were regulated primarily by informal, rather than by formal laws and diktats (non-state law). Religion, customs, usages, traditions, and kinship played an important role in determining the tenor of common property management.34 This aspect can be seen in ancient Indian jurispru29

Elinor Ostrom, Roy Gardner & James Walker, Rules, Games, & Common-Pool Resources (US: University of Michigan Press, 1994) at 5. 30 Ibid. 31 Escotet Foundation, Interview with Nobel Laureate Elinor Ostrom, online: ESCOTET FOUNDATION, Blog, Foundation News ; David Bollier, “The Future of International Environmental Law: A Law of the Ecological Commons?” in Jonathan C. Carlson, Geoffrey W.R. Palmer & Burns H. Weston, eds, International Environment Law and World Order: A Problem-Oriented Coursebook 3d ed (Minnesota: West Group, 2012) I-Ch 14-p 1 at 12–13. 32 Bollier, ibid. at 12. 33 Hess & Ostrom, “Introduction”, supra note 19 at 7. 34 Ostrom, supra note 21 (referring to the rules developed in the fishing village of Mawelle in Sri Lanka relating to the use of beach seines). Even though outside the formal legal process, villages play an important role in regulating artisanal fishing. See generally Maarten Bavinck, “Caste Panchayats and the Regulation of Fisheries along Tamil Nadu’s Coromandel Coast” (2001) 36:13 Economic & Political Weekly 1088 (JSTOR).

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dence where certain rudimentary elements of the concept of public trust were predominant.35 Kings were often regarded as trustees of resources like land, water and forests, and it was their dharma (sacred duty) to promote and foster communal ownership and utilization of resources.36 By and large, community management of common property continued till the advent of colonialism, which then led to a sea change in the regulatory regime. Driven by the necessity to exploit natural resources in its colonies, new legal doctrines like the act of state were developed by the English courts.37 Under this principle, an inhabitant could make good in the municipal courts established by the new sovereign, only those rights which the new sovereign recognized through his/her officers. Rights guaranteed and enjoyed under the predecessor rulers enjoyed no legal sanctity.38 Even if in a treaty of cession it was stipulated that certain rights could be enjoyed, this could not per se confer a valid and sound title, which could be enforced in the new ruler’s municipal courts.39 As a result, customary rights hitherto enjoyed by local communities over resources management could continue only if these were not anachronistic to the economic interests and designs of the new sovereign and the market.40 Legislative initiatives also lent a hand to fortify state monopoly and 35

Participatory natural resources management where the community managed and preserved sacred groves, village tanks, and pasture lands was a major feature of ancient Indian society. Arabinda Mishra et al., Common Property Water Resources: Dependence and Institutions in India’s Villages (New Delhi: TERI Press, 2008) at 14. 36 In ancient India, kings were more than a trustee. A.S. Altekar, State and the Government in Ancient India (Delhi: 2001) at 379. The principle of trusteeship of earth resources is evident from the following sermon delivered by Mahinda, son of Emperor Asoka to the Sri Lankan king Devanampiya Tissa, while on a hunting trip. Mahinda sermonized: “O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art. only the guardian of it.” Justice Weeramantry identifies this as the first principle of modern environmental law. Case Concerning Gabčíkovo-Nagymaros Project (Hungary/ Slovakia), [1997] ICJ Rep 7 at 101–02 (separate opinion of vice-president Weeramantry). 37 Vajesingji Joravarsingji v Secty of State for India in Council, (1924), [1924] LR 51, Ind App 357. 38 Ibid. 39 Ibid. 40 For instance, see A.M. Bhattarai, “Developing Decentralised Institutions: Towards a Legal Framework” in Anil Agarwal, Indira Khurana & Sunita Narain, Making Water Everybody’s Business (New Delhi: Centre for Science and Environment, 2001) 333 at 333– 35. In Bangladesh, it is reported that there were 13,000 public inland fisheries known as Jalmohals. During the British colonial rule, in 1793, the ‘permanent settlement’ was affected to settle these fisheries with a view to maximize state revenue from feudal lords.

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colonial dominance. The British soon began to exercise an exclusive control over natural resources in its colonies in South Asia, not as proprietor, but as sovereign.41 Another important development that virtually re-wrote the rules of societal engagement was the introduction of European feudal ideas into these societies.42 Even after de-colonization, this major paradigm shift in natural resources management still continues to hold sway in South Asia.43 The constructive role attained by individuals and local communities in natural resources

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In turn, the feudal lords could impose fees on the fishers for fishing rights and access to common pool resources. This system continued till the enactment of the State Acquisition and Tenancy Act, 1950, which led to the abolition of the Zamindar (feudal lord) system and these fisheries became government property under the administrative control of the ministry of land. Naisruddin Md Humayun, Can Community-Based Participation of Coastal Fishers Contribute to Sustainable Management and Development of Coastal and Marine Fisheries Resources of Bangladesh? (MMM Thesis, Dalhousie University, 2004) [unpublished] at 23–24. For instance, in the water law context, beginning with the Northern India Canal and Drainage Act, 1873, numerous enactments have established public ownership of surface waters and government control over their use, development and distribution. Alice Jacob, “Modernisation of Indian Water Laws” (1977) 1 Academy L Rev 154 at 157. These far reaching legal changes are not limited to South Asia alone. In Africa, for long, pastoral land was held in trust by the living for future generations and pastoralists were considered as custodians of the commons. However, this concept is now little understood in Africa by national governments. Customary pastoral land tenure systems have been replaced and lands are being alienated and degraded and the root cause of many of these changes can be traced to colonialism. Charles R. Lane, ed, Custodians of the Commons: Pastoral Land Tenure in East and West Africa (London: Earthscan, Publications Ltd, 1998) at 1–19. For more details, see Urmila Sharma & Sanjeev Kumar Sharma, Indian Political Thought (New Delhi: Atlantic Publishers and Distributors, 1996) at 66; M.H. Qureshi & S. Aparna, “Quest for Land Reforms in Kerala” in Noor Mohammad, ed, Socio-Economic Dimensions of Agriculture, New Dimensions in Agricultural Geography, vol. 3 (New Delhi: Concept Publishing Co, 1992) 109 at 109–10. The Constitution of India provides for the continuance of laws in force in the territory of India immediately before its commencement unless the same has been altered, amended or repealed by a competent legislature or other competent authority. Constitution of India 1950, art. 372 [Constitution of India]. Accordingly, several colonial legislations that fortify state monopoly over natural resources to the exclusion of communities continue to operate to this day.  Even though the State Acquisition and Tenancy Act, 1950, abolished the feudal system in respect of public inland fisheries in Bangladesh, the government continued to lease the Jalmohals to the elite. The lease-holders in their turn, encouraged overexploitation, treating fishers as mere laborers working on low wages. Humayun, supra note 40 at 24.

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management over thousands of years continues to see steady erosion, along with the traditional knowledge upon which management practices were built.44 This is the tragedy of the loss of the commons, resulting in the dilution of communal rights, the intrusion of the idea of private property, reliance on marketbased economic systems for resources management, the pursuit of more intensive models of economic development and, more recently, attempts to reconfigure and integrate subsistence economies into the globalised economy.45 While a legalistic, adversarial and formal approach to resources management has merits in terms of prescribing a legal frame for resources management, in certain cases, formal legalistic regimes tend to exclude local communities from enjoying entitlements to resources. Often, local and traditional coastal communities in South Asia exercise limited de facto control over resources, and rarely do they have any de jure rights over them because the resources are generally controlled by the state under its sovereign powers.46 Consequently, from a legal point of view, autochthonous communities are dangerously perched because whatever usufructuary rights they enjoy over resources can easily be extinguished by the state.47 While the right to access resources is a necessity determined by the need to survive and progress, community rights are often viewed as anathema to conservation objectives.48 The growing realization that this view is not 44

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Aarthi Sridhar, “Eminent domain, absolute doubt: Crusade for Goa’s comunidades” Infochange (December 2010), online: Infochange, News & Features ; see also, Report, “Who owns the river?” Down To Earth (31 July 2001), online: Down To Earth ; Tony George Puthucherril, Water Resources Management Law: A Case Study with Reference to the State of Kerala (M.Phil Thesis, WB National University of Juridical Sciences, India, 2003) [unpublished]. Unbridled capitalism and socio-economic deprivation are the root cause of insurgency in India. Nandini Sundar v Chattisgarh, (2011) [2011] AIR SC 2839 (India SC). A classical example of such an approach is evident in the Wildlife Protection Act, 1972; see also Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 (No. 158 of 2005, India), statement of objects and reasons. It has been reported from India that large-scale developmental activities have encroached upon the habitats of fisher folk and affected their livelihoods. India, Ministry of Environment & Forests, Final Frontier: Agenda to Protect the Ecosystem and Habitat of India’s Coast for Conservation and Livelihood Security, Report of the Expert Committee on the Draft Coastal Management Zone (CMZ) Notification, Constituted by the Ministry of Environment and Forests, Under the Chairmanship of Prof. MS Swaminathan (New Delhi: Ministry of Environment & Forests, 2009) at 18 [India, Ministry of Environment & Forests, Final Frontier]. For instance, fishers used the island of Jambudwip in the Bay of Bengal, which belongs to India, as a convenient transit point to dry fish. Satellite imagery showed that despite long

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necessarily sustainable spurred a push to revert to more community-based and decentralized management systems and to recognize non-state management law.49 Such a reversal can go long way to help secure livelihood opportunities, augment adaptive capacities, and contribute to sustainable development.50 As discussed in the previous chapters, decentralized community-based management is an integral component of ICZM programs and useful for minimizing conflicts among stakeholders and communities and is more sustainable in the long run.51 While empowering local communities by giving them a larger say in natural resources management and by recognizing their customary laws for this purpose, it must be kept in mind that in South Asia, the caste system and patriarchal norms, though proscribed at a normative level, still persist.52 Therefore, it is possible that women, religious minorities, and communities

49

50

51

52

years of use, the island lost only 200 hectares of mangrove forest. Despite pleas by the fishing community that they be permitted to continue to use the island, the Supreme Court of India, based on the report of the Central Empowered Committee, disallowed fishers from using the island, ostensibly to protect the mangroves. See generally M.K. Jiwrajka for Central Empowered Committee, Report on Jambudwip (New Delhi: CEC, 2002); see also India, Ministry of Environment & Forests, Final Frontier, ibid. at 23. For instance in Bangladesh, to manage the Jalmohals, community‐based fisheries management project was developed as a participatory fisheries management program implemented in two phases (1996–2001 and 2001–2006). Iqbal Kabir & S. Rizwana Hassan, Legal Issues Pertaining to Community Based Fisheries Management, Conference Paper 05 (Bangladesh: Bangladesh Environmental Lawyers’ Association, [nd]) at 6. For instance, when India decided to revamp its coastal law, the national government appointed an expert committee under the chairmanship of M.S. Swaminathan, which inter alia recommended the enactment of a special legislation to protect the rights of traditional fisher folk. The draft Traditional Coastal and Marine Fisherfolk (Protection of Rights) Act, 2009, recognizes the following as the rights of fisher folk: right of ownership and access to areas, traditional rights customarily enjoyed by the traditional fisher folk, right of access to biodiversity and community right to intellectual property and traditional knowledge, etc. For the text of the draft document, see Traditional Coastal and Marine Fisherfolk (Protection of Rights) Act, 2009, online: Ministry of Environment & Forests . See also Laurent Mermet & Raphaël Billé, “Integrated Coastal Management at the Regional Level: Lessons from Toliary, Madagascar” (2002) 45 Ocean & Coast Mgmt 41 (ScienceDirect). In Bangladesh, low caste Hindus were traditionally involved in full-time fishing and they developed institutions to protect and conserve fisheries but with the entry of landless, marginal and unemployed Muslim farmers, the fishing dynamics is changing. Humayun, supra note 40 at 24; Bavinck, supra note 34 (sea fishing in India is primarily a caste based occupation). The Indian Constitution abolishes untouchability and its practice in any form. Constitution of India, supra note 43, art. 17; see also the Scheduled Castes and

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belonging to lower castes can be excluded from coastal management decisionmaking processes, and from enjoying their rightful share of coastal resources. Consequently, to avoid and eliminate these, the law’s role as an instrument of social engineering must be utilized to correct these social inequities.53 Five specific functions that law offers to advance this composite social objective are as follows: first, it secures social control. In this sense, law’s presence is treated as a “pre-condition for security and stability rather than a salient feature of development strategies.”54 Secondly, the idea of the rule of law requires limitations on state power and demands government accountability. In this context, law should be “general, prospective, public, clear, and certain.”55 Third, law is regarded not only as a facilitator of laissez faire and free markets but also as promoting development by protecting property rights, securing contract enforcement, facilitating commerce, and promoting foreign direct investment. Its market reform function must be consonant with respect for human rights, good governance and democracy.56 Fourth, law is treated as a multifunctional phenomenon, because it is “ . . . relevant to development in various ways at a number of levels.”57 Finally, human rights, such as the right to life, and to live in a clean environment are treated as enforceable legal rights, rather than as unenforceable moral rights.58 A coastal law provides all of the above benefits. It can provide the necessary pre-conditions for security and stability in the coastal zone, while catering to and harmonizing a wide range of interests. It can promote the rule of law by ensuring that coastal governance is subject to rules, and that there is

53

54 55 56 57 58

the Scheduled Tribes (Prevention of Atrocities) Act 1989 (No. 33 of 1989, India); see also Arumugam Servai v State of Tamil Nadu, (2011) 6 SCC 405. As a tool of social engineering, law can be utilized to support affirmative action measures like reservations in local bodies to women and to minorities and other lower castes. The experience of India in this regard is illustrative. The Constitution (Seventy-Third Amendment) Act 1992, (India), online: India Code: Legislative Department ; see also The Constitution (One Hundred and Eighth) Amendment Bill, 2008 proposes to amend the Constitution to reserve 33 per cent of all seats in the Lok Sabha (House of the People), and in all state legislative assemblies for women. There is strong opposition to this amendment and it is still hanging in the air. (No. XXX-C of 2008, India). William Twining, General Jurisprudence: Understanding Law from a Global Perspective, (Cambridge: Cambridge University Press, 2009) at 330–32. Ibid. at 332–36. Ibid. at 336–40. Ibid. at 340–46. Ibid. at 346–48.

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accountability. It can also promote the operation of free markets and facilitate a rights based approach to coastal management by securing, inter alia, the rights of coastal communities to live in a clean coastal environment and to generate their livelihood. In this atmosphere—of law and legality—good coastal governance can develop and thrive. This is so because good “[e]nvironmental [g]overnance comprises [and promotes respect for] the rules, practices, policies and institutions that shape how humans interact with the environment,” to promote social welfare.59 7.2.1 Remarks The first major point that emerges from the above analysis is that to prevent the tragedy of the coastal commons, recourse can be had to the regulatory and coercive function of law. Here, law can prescribe rules to regulate the management of the coastal commons to ensure that all users conduct themselves rationally; free-riders are eliminated; and ensure that the resource is sustainably utilized not only for the present but also for the future. A second major point is that while privatization may prevent the tragedy, in certain situations, it can lead to undesirable consequences and inequities necessitating legal intervention. The goal is therefore to seek the greatest happiness of the greatest number who depend on the coastal areas and resources—a coastal law of prioritarianism that caters also to the interests of those on the lowest rung. A third point is that SCD and good coastal governance also mandate law to translate several management postulates into specific actions like the construction of a sea wall, acquisition of private coastal property, actions to control marine and coastal pollution, and punishments for failure to comply with legal requirements. In the foregoing ways, a coastal law codifies and expresses the expectations of a coastal community, and gives them hope that their rights to life, property, a clean and healthy coastal environment, development, and overall well-being will be respected and upheld. ICZM law, thus, actualizes the common welfare postulates of Hardin’s theoretical warnings of tragedy and tempers the tendency of powerful stakeholders and the state to ignore the humanitarian concerns of egalitarianism that should underlie governance in the coastal zone. The strengths and weaknesses of legal intervention, along with the opportunities it presents in the face of threats to its effectiveness in achieving the goals envisaged, are now considered.

59 UNEP, Environmental Governance, Brochure, online: UNEP, Environmental Governance, Publications .

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The Need for an ICZM Legal Framework: SWOT Analysis

Two questions that invariably crop up in discussions on coastal law reform are these: first, can any purpose be served by adding new laws onto the environmental law statute book? Second, why do we need a dedicated coastal law when there is already a potpourri of legislations and rules to govern different aspects of the coastal environment? Poor internalization of laws and their ineffective enforcement due to lack of personnel, lax monitoring, and absence of resources, are often cited as the main reasons for the sorry state of environmental and resources management, particularly in an economically developing region like South Asia. This is why it is a legitimate concern whether new legislation on coastal zone management will make any difference. Most South Asian countries have been parsimonious in enacting environmental and natural resources laws. In India, for example, apart from a few antiquated colonial legislations that had only indirect application to the environment, there were no environmental protection laws per se for a long time.60 The proverbial leap of faith occurred only after the Stockholm Conference and later with the Bhopal gas leak tragedy.61 Since then, India has developed a penchant to rely on law to respond to environmental problems, though the process of environmental law-making has not been linear or steady.62 60

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62

The three countries in the Indian sub-continent, namely, India, Pakistan and Bangladesh due to their common colonial past even now (subject to country based amendments) share some of the British introduced legislations that have an environmental basis. Prominent among them are: the Forest Act, 1927 and Fisheries Act, 1897. For the text of the Forest Act, 1927, as applicable in India, Pakistan and Bangladesh, see Indian Forest Act, 1927 (16 of 1927, India); Forest Act, 1927 (XVI of 1927, Pakistan); Forest Act, 1927 (XVI of 1927, Bangladesh). For the text of the Fisheries Act, 1897 as applicable in India and Pakistan, see Indian Fisheries Act, 1897 (4 of 1897, India); Fisheries Act, 1897 (IV of 1897, Pakistan). See generally Bharat Desai, “The Bhopal Gas Leak Disaster Litigation: An Overview” in Asian Yearbook of International Law, vol. 3 (The Netherlands: Martinus Nijhoff Publishers, 1994) 163; Bano v Union Carbide Corp, US Dist LEXIS 4097 (SD NY, 2003); Charanlal Sahu v India, (1989), [1990] 1 SCC 613 (India SC); Marc Galanter, “Legal Torpor: Why So Little Has Happened in India After the Bhopal Tragedy” (1985) 20 Texas Int’l LJ 273 (HeinOnline); Daniel Barstow Magraw, “The Bhopal Disaster: Structuring a Solution” (1985) 57 U Colo L Rev 835 at 836 (HeinOnline). Some of the major environmental laws are: Water Act, 1972, the Air Act, 1981, Hazardous Waste Management and Handling Rules, 1989, and the Coastal Regulation Zone Notification, 1991.

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Despite this, the administration of the laws has not balanced development and environmental protection. As a result, attention turned to the judiciary to promote the cause of environmental justice. This has spurred some of the finest judicial law-making by one of the most powerful constitutional courts in the world. The presence of laws in the statute book63 has enabled citizens to utilize public interest litigation for orders, including ‘continuing mandamus’ to ensure compliance with the laws.64 The courts have upheld the right to a clean environment as a fundamental human right to order protection for citizens in matters relating to environmental degradation.65 Public interest litigation allows standing to anyone who has an arguable interest even in environmental protection matters. The net effect is that there is considerable public awareness about the need to protect the environment. Most people believe that notwithstanding the imperative of economic development, a cleaner environment improves the quality of their lives, and these beliefs have been firmly entrenched as environmental values in Indian society. Even in Pakistan and Bangladesh, public interest litigation has emerged as an important tool to secure environment justice.66 Nonetheless, corruption, bureaucratic apathy, poorly drafted laws that provide loopholes to escape their control,67 state ambivalence toward providing necessary resources and capacity to state pollution control boards to implement pollution laws, are the primary factors that have reduced the efficacy of environmental laws in India and in the other countries of the South 63

64

65 66

67

Even in the absence of environmental laws covering a point, the writ courts could deal with the matter. See Maneka Gandhi v India, (1978), [1978] AIR 597 (India SC); Francis Coraile Mullin v Administrator, Delhi, (1981), [1981] 1 SCC 608 (India SC); M.C. Mehta v India, (1986), [1987] AIR 1086 (India SC) (Oleum Gas Leak Case). For more details, see T.N. Godavarman Thirumulpad v India, (1996), [1997] 2 SCC 267 (India SC) (defining the term forest); T.N. Godavarman Thirumulpad v India, (1997), [1997] 3 SCC 312 (India SC) (appointment of High Power Committee); T.N. Godavarman Thirumulpad v Ashok Khot, (2006), [2006] 5 SCC 1 (India SC); T.N. Godavarman Thirumulpad v India, [2012] Writ Petition (C) N0 202 (India SC); see generally Armin Rosencranz & Sharachchandra Lélé, “Supreme Court and India’s Forests”, Commentary, (2008) 43:5 Economic & Political Weekly 11 (JSTOR). See generally supra note 63. See generally Jona Razzaque, “Linking Human Rights, Development, and Environment: Experiences from Litigation in South Asia” (2007) 18 Fordham Envtl L Rev 587 (HeinOnline). India has had a dismal record in implementing its coastal law. For more details, see Ch. 3; see also Tony George Puthucherril, “Operationalising Integrated Coastal Zone Management and Adapting to Sea Level Rise through Coastal Law: Where Does India Stand?” (2011) 26 Int’l J Mar & Coast L 569 (SwetsWise).

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Asian region.68 Merely because implementation concerns exist, does not mean it is not useful to create new laws on resources management. Actually, the problem has two facets: lack of laws to address particular issues and poor implementation. This study is concerned only with the first aspect, for lawmaking is necessary to fill gaps in national legislation, to strengthen existing and emerging institutions, and to rationalize and streamline efforts to achieve sustainable coastal development. As to the need for a dedicated coastal law, it must be pointed out that to operationalize ICZM through law two options are available. The first model exemplified, for instance, by Bangladesh, is the non-legislative one, where implementation is based on an ICZM plan or policy/strategy.69 This approach integrates sectoral approaches to coastal management through policy guidelines and related prescriptions. Even so, recourse is had to existing laws and regulations to ground and steer policy implementation. This is because in most cases, the policy or plan of action is a statement of lofty ideals, which cannot be put into practice without normative mandates. These mandates arise from statutes governing different aspects of coastal areas and resources, such as laws regulating fishing and aquaculture, land-use planning and development, marine pollution, water use, protection of the environment, forestry and biodiversity conservation.70 Because of their differentiated specificities, these laws do not further integration. As well, none of them comprehends coastal environment and resources management as a holistic challenge.71 The challenge to ICZM under a disparage legal structure that seeks to ration­ alize an overarching policy is that it may falter under the weight of competing and conflicting interests that may pull the legal patchwork in different directions. This throws up the challenge whether existing legislations should simply be repealed or amended to attune them to ICZM objectives, or an entirely new 68

M.C. Mehta, “The Accountability Principle: Legal Solutions to Break Corruption’s Impact on India’s Environment”, Book Excerpt, (2006) 21 J Envtl L & Litig 141 at 142–43 (HeinOnline). 69 For more details regarding the non-legislative approach to coastal management in Bangladesh and in the Maldives, see Ch. 3. 70 Ibid. 71 Ibid. Even though the Coastal Zone Policy, 2005 of Bangladesh was a significant step in implementing ICZM, it could not avert a large number of management-related problems that affected the coastal zone; a major one, being the inability to harmonize sectoral policies, plans and laws. See also Kazi Shakila Islam, Xiong-Zhi Xue & Mohammed Mahabubur Rahman, “Successful Integrated Coastal Zone Management (ICZM) Program Model of a Developing Country (Xiamen, China)—Implementation in Bangladesh Perspective” (2009) 2 J Wetlands Ecology 35 at 35–41.

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law should be enacted for the purpose. The preference implicit in this study so far is to enact a specific ICZM-focused statute, which sets out the fundamentals required for the development and operation of an ICZM process. Coastal management under archaic and disparate laws, however re-engineered, may generally be inimical to SCD and lead to unsustainable coastal use practices. Ultimately, however, the choice depends upon the nation concerned. But a SWOT analysis is now utilised to stress the importance of basing ICZM practice within a specific legal framework. 7.3.1 Strengths The most important strength held out by a coastal law is that it helps to reduce the rhetoric of SCD into precise practice, even in light of the constantly changing coastal environment. A well-drafted coastal legislation can ensure that the various coastal management efforts do not depart from the central goal of achieving sustainable development. A coastal law thus emerges as the expression of a long-term commitment by the state to sustainable development imperatives.72 The specific provisions of the law then enable a balance to be worked for among the imperatives of environmental protection, coastal development and CCCA and mitigation.73 Clearly, such a law must give practical pointers to implement the requirements of sustainable development principles, including polluter pays, precaution, the public trust doctrine, inter- and intra-generational equity, public participation, and environmental impact assessment.74 Another advantage of a coastal law is that it provides clarity, and seeks to secure consistency and efficiency in the application of accessible rules in the effort to work towards SCD. Otherwise, the predominant situation in most coastal countries is that coastal management (or, for that matter, environmental management) becomes a reactive response to specific crises and lingering problems. In the absence of a legislative trigger, a sustained engagement in coastal planning and management involving a broad range of actors and 72

73

74

For instance see National Environmental Management: Integrated Coastal Management Act, (S Afr), No. 24 of 2008, s. 12 (state is a trustee of coastal public property) [SA, Integrated Coastal Management Act]. For instance, see ibid.; see also New Coastal Zone Management Act 1988 (No. 39 of 1998, Barbados) [Barbados CZMA 1998]. Parties are to endeavour to ensure that their national legal instruments include criteria for sustainable use of the coastal zone. Protocol on Integrated Coastal Zone Management in the Mediterranean, [2009] OJ L 34/19, art. 8(3) [ICZM Protocol]. For instance, see ICZM Protocol, ibid., art. 6.

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stakeholders is rarely possible. The ad hoc approach can be eliminated through application of the coastal law. As the Latin maxim says, ignorantia juris non excusat (ignorance of law is no excuse), implying that people ought to know the law, so they can live by it.75 Laying down the tenets of coastal zone management in black and white helps stakeholders to plan appropriate activities and to work to avoid conflict. A related forte is that the instrumentality of law helps to view coastal management through the prism of rights and duties, because the law lays down formal rights and duties applicable to an expanded realm of geography and jurisdiction. The coastal ecosystem is a dynamic whole composed of several subsets of ecosystems. To effectively regulate the use of a portion of the system, it is necessary to understand and respect its role and function within the whole.76 An ICZM law is necessary to undergird both the micro- and macromanagement of coastal resources.77 Implementation of ICZM requires the involvement of many government departments and statutory agencies, among others. As mentioned earlier, ICZM does not seek to displace sectoral management; rather, its emphasis is to link the different sectoral management initiatives to ensure that decisions in respect of the coastal zone are holistic. The law is needed to integrate the activities of the sectors because most government departments zealously guard their turf and strive to maintain the status quo ante, especially when there is no express and compelling legal requirement to the contrary. The law thus engenders cooperative coastal management as the various departments come together to work under the mandate of the law to achieve its objectives.78 Additionally, a coastal law can increase the government’s role in streamlining and coordinating the management process to protect and preserve life and property and thus, to make good the principle that salus populi est suprema lex (public welfare is the highest law). In regions like South Asia where the coastal zone is the economic resource for a variety of private players, corporate houses, tourist operators, artisanal fishers, etc., there is asymmetry in the 75

James A. Ballentine, A Law Dictionary (New Jersey: The Law Book Exchange, Ltd, 2005) sub verbo “ignorantia juris non excusat.” 76 Cullinan, supra note 2 at 10. 77 Ibid. at 8. 78 For instance, the Belize CZMA establishes a Coastal Zone Management Authority, an Advisory Council and a Coastal Zone Management Institute. See Coastal Zone Management Act, (Belize), No. 5 of 1998 [Belize CZMA]. The Barbados New Coastal Zone Management Act, 1998, provides that the National Conservation Commission has to prepare a draft coastal zone management plan and a draft order delimiting a coastal zone management area. Barbados CZMA 1998, supra note 73.

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power relations among the players in establishing management goals. A coastal law that necessitates the state’s role in implementation and coordination can coalesce the divergent interests around the central focus of ICZM, eliminate rent-seeking and bring in some equity in the influence of power exerted by the actors engaged in the ICZM process. A coastal law can also facilitate local participation and validation of the values of traditional knowledge and practical experience relevant to undertaking ICZM programs. Public participation in ICZM affords greater legitimacy to the process and is more likely to produce tangible on-the-ground results. In fact, many significant gains in natural resources management and conservation have been achieved through empowering local communities who by their involvement, take ownership of the programs by the decision-making powers they are given and the opportunities to exercise them. In South Asia, where the caste system and being a woman or belonging to a religious minority can sometimes lead to exclusion from management, a coastal law, through its egalitarian mandate, can help secure the involvement of coastal communities and residents in the coastal zone management process.79 At its core, coastal management is all about regulating human behavior in relation to the coastal environment. Therefore, in the absence of a dedicated law to guide it, its regulatory impact may be ineffective. Coastal residents may indulge in unsustainable activities that can damage coastal ecosystems, reducing their resiliency to the detriment of the larger coastal community. For instance, harmful chemicals may be dumped into the coastal waters, or people may overharvest fish stocks, or carry out other destructive practices like cyanide poisoning of fish.80 Maintenance of environmental quality is critical for coastal health and the coast’s aesthetic qualities. As well, some coastal uses must be prioritized and restrictions imposed on development in the coastal zones. The regulatory control of law is needed to pursue these objectives. Management also requires rewards and sanctions as part of its structural control of activity. A coastal law’s provision for both of these will impel discipline in interested parties’ purists to conform them to ICZM goals. In this way, coastal zone management will be based on the rule of law.81 79 80

81

See generally Resource Management Act, 1991(NZ), 1991/69 [NZRMA]; SA, Integrated Coastal Management Act, supra note 72. In the Bangladesh coastal zone, conflicts have been reported between artisanal and industrial fishers, shrimp farmers and paddy cultivators, and fishers and shrimp fry collectors. Dipak Kamal, Biodiversity Conservation in the Coastal Zone of Bangladesh (MMM Thesis, Dalhousie University, 1999) [unpublished] at 83. Beckman & Coleman, supra note 1 at 521.

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The Indian experience discussed in chapter three demonstrates that in the absence of a well-drafted coastal legislation, litigation will be an increasingly common method to resolve coastal related disputes. As well, many gains that can be secured will be diminished by the inability of the state to appreciate the nuances of the factors that must support SCD. An important strength held out by a coastal law is that it facilitates judicial review of executive actions in terms of the parameters established by the coastal law.82 The judicial process tends to be more organized when it is based on legislation, and so by enforcing a coastal law, the judiciary can call into question the conduct of the government that may be supposed to be based on that law. 7.3.2 Weaknesses As far as the downside is concerned, when ICZM flows from a legal framework, it generally becomes structured and less flexible. Even though it is generally the role of ICZM plans to reflect current realities, an ICZM plan can go only so far as what the legislation mandates. Accordingly, a coastal law cannot remain static; it must evolve and adapt according to changes in the natural environment and in the human activities that utilize that environment and its resources. This inherent inflexibility of law is a potential barrier to the realization of adaptive management. This is because necessary changes to coastal legislation in light of new challenges and opportunities can only be as quick as amendments can be made to the existing law.83 Designing laws with aspirational and laudable goals does not mean that laws actually accomplish those goals. Merely enacting a coastal law will not, per se, reverse or stop coastal degradation and achieve adaptation to climate change impacts. What is needed is effective implementation of the legal mandate with the aim to achieve the desired outcomes. The presence of the law is, however, the prerequisite to its enforcement. A related weakness is that implementation will very likely lead to disputes and judicial interference in the coastal zone management process. Such intervention may produce prolonged litigation that consumes time and resources and render the ICZM process expensive and ineffective.84 Thus, just 82 83

84

ICZM Protocol, supra note 73, art. 14(3). For instance, only two amendments have been carried out to the Sri Lanka’s coastal management statute in its nearly three-decade existence. In sharp contrast, India’s Coastal Regulation Zone Notification, 1991 (a piece of delegated legislation), in its twodecade existence, has seen nearly 25 amendments. For more details, see Ch. 3. For more details on judicial process and coastal management in India’s context, see Ch. 3, Part 3.2.1.2.

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as law has the potential to facilitate the ICZM process, it also has the capacity to inhibit it.85 Perhaps the most unavoidable weakness that can disrupt ICZM implementation via a coastal law is the dynamics of the working of a nation’s constitutional arrangement. Indeed, this factor has led to stagnation of ICZM efforts in several countries. As discussed in chapter six, in both the federal and unitary systems examined, a daunting challenge to enacting a coastal law relates to the constitutional division of powers, especially where a specific legislative head of power on coastal zone management is absent from the enumerated lists. This, as we saw, means that coastal zone management is built on a complex mix of legislation, plans and policies administered at different levels. As well, management and regulatory competence over the landward and seaward components of the coastal zone may come under fragmented authority. This situation, as discussed, undermines spatial integration, which is foundational to an ICZM regime. 7.3.3 Opportunities Formalizing the multi-dimensional policy agenda of ICZM in terms of a coastal law can help offset inertia and apathy in coastal management and to steer an ICZM process toward SCD. An ICZM process creates the opportunity to promote the development of adaptive capacities to respond to sea level rise (SLR) and other climate change impacts.86 This is extremely important given that CCCA in most developing countries is presently restricted to the building of sea walls and placing boulders to counteract a rising sea.87 Another important opportunity afforded by a coastal law is that it can trigger conservation of specific coastal resources. For instance, it can spur the management of ground water aquifers, coastal wetlands and mangroves.88 As well, it provides

85 86 87 88

See generally John Gibson, “Integrated Coastal Zone Management in the European Union” (2003) 31 Coast Mgmt 127. For the South African experience on the point, see Ch. 6, Part 6.3.3. See generally Ch. 3. For instance, see The Coastal Regulation Zone Notification (N, SO114(E) 1991, India) [CRZN, 1991]; Coastal Regulation Zone Notification (N, SO19(E), 2011, India) at 4 [CRZN, 2011]. Both contain provisions that regulate the extraction of groundwater from the coastal zone. In addition, several of the coastal states have enacted their own groundwater management legislations. For instance, see The Kerala Ground Water (Control and Regulation) Act 2002 (No. 19 of 2002, India); The Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011 (No. 25 of 2011, India).

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an opportunity to combine ICZM with other management tools like marine spatial planning,89 and river management.90 7.3.4 Threats Most threats that impair the effectiveness of a coastal law are those that are germane to an ICZM process. Change is constant in coastal zones. What is land today can become submerged tomorrow, and, therefore, it is extremely difficult to lay down hard and fast rules regarding coastal environmental management. Furthermore, coastal laws must operate in the background of uncertain variables, and, along with the ICZM process, must be based on good science.91 In developing countries, the lack of sound scientific information can undermine the strength and stability of an ICZM legal framework.92 Another related threat is that ICZM implementation requires a cadre of knowledgeable officials. The process requires constant monitoring of ground realities, which as stated above, keep changing. Accordingly, the officials who oversee ICZM implementation must have the expertise to lead, monitor, and steer the process through uncertainties to achieve tangible implementation results in the long run. The reality is that most officials involved in ICZM implementation are rarely trained in what to do.93 In South Asia, there are no dedicated programs on ICZM education. This has considerably weakened the development of ICZM capacity in the region. As well, when officials trained in the ICZM process are transferred to other duties, implementation programs are left in the lurch midway. Other factors that can derail the ICZM process are the lack of adequate funding and sustained political support.94 Since lawmakers require tangible results on short-time scales to keep their constituencies in good humor, and as the ICZM process is based 89 EC, Proposal for a Directive of the European Parliament and of the Council Establishing a Framework for Maritime Spatial Planning and Integrated Coastal Management [2013] 0074 (COD) at 8 [Directive for MSP and ICM]. 90 For instance, see SA, Integrated Coastal Management Act, supra note 72, s. 33 (calls for the creation of the National Estuarine Management Protocol and estuarine management plans). 91 For instance, see Belize CZMA providing for the creation of the Coastal Zone Management Institute to conduct studies on marine science and to support the University of Belize in providing courses and educational programs related to the coastal zone. Belize CZMA, supra note 78, ss. 8, 10. 92 See generally Biliana Cicin-Sain & Robert W. Knecht, Integrated Coastal and Ocean Management: Concepts and Practices (Washington DC: Island Press, 1998) ch. 7. 93 For instance, see ICZM Protocol, supra note 73, art. 15 (emphasizing training). 94 Cicin-Sain & Knecht, supra note 92 at 125–29 & 166–68.

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Table 3

SWOT Analysis on the Importance of a Legal Framework to Support ICZM Need for A Dedicated Legal Statute on ICZM: A SWOT Analysis

S

W

Strengths

Weaknesses

1. Helps implement sustainable coastal development by a principled approach 2. Eliminates ad hocism and addresses comprehensive issues 3. Reduces conflicts and guarantees rights and imposes duties 4. Facilitates integration and secures increasing roles for the state 5. Corrects asymmetries and rent seeking opportunities 6. Facilitates public participation 7. Can promote affirmative action 8. Regulates human behaviour (sanctions) 9. Facilitates judicial review

1. Amending process can be time consuming and difficult 2. Implementation glitches 3. Judicial interference may jeopardize effective implementation 4. Lack of expertise to draft and implement the law 5. Nature of constitutional arrangement of authority may complicate or obstruct spatial integration and decentralization

O

T

Opportunities

Threats

1. Helps to implement sustainable coastal development 2. Facilitates response to SLR and other climate change impacts 3. Promotes development of adaptive capacities 4. Triggers conservation measures in relation to specific coastal resources 5. Facilitates linking ICZM with other tools like marine spatial planning and river basin management

1. 2. 3. 4. 5. 6.

Uncertain landscape Lack of good science Lack of a trained cadre to implement ICZM Lack of sustained political commitment Paucity of financial resources Local community involvement may be absent 7. Requires long time scales and consistent efforts to produce sustainable results

on longer-time scales, committed political support may wane and impair ICZM implementation.95 Finally, in coastal states that do not have dedicated coastal laws, coastal management is embedded within existing legal structures 95

Lucia Fanning, “Evaluating Effectiveness of ICZM: Identifying and Addressing Ongoing Challenges” (Lecture in Integrated Coastal Zone Management, LAWS 2041.03 delivered at

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where insufficient attention may be given to it because doing so introduces yet another layer of regulatory complexity. This SWOT analysis served to highlight the fact that the combination of strengths and weaknesses that are associated with building a coastal management regime on a dedicated coastal law also give good relief to the opportunities the law offers to facilitate the achievement of ICZM goals for SCD and effective adaptation to SLR impacts. This hope is not dimmed by the threats that the efficacy of the law may face. Overall, however, whether implemented by statutory or non-statutory means, law is integral to an ICZM process, which, in any case, is most effectively carried out under the mandate of a dedicated statute. The virtues of doing so are set out in the preamble to the South African National Environmental Management: Integrated Coastal Management Act, 2008 (ICM Act) as follows: the conservation and sustainable use of the coastal zone requires the establishment of an innovative legal and institutional framework that clearly defines the status of coastal land and waters and the respective roles of the public, the State and other users of the coastal zone . . .  facilita[ting] . . . a new co-operative and participatory approach to managing the coast.96 Such a law establishes “a governance system that enables, facilitates and supports an integrated approach to managing human uses of coastal areas.”97 It creates new institutions and provides a blueprint to sustain a symbiotic relationship between humans, the coastal environment and its resources. Moreover, it seeks to preserve a conservation ethic in the midst of the myriad of interactions that take place in the coastal environment between humans and the environment. The law also streamlines the sectorally organized administrations and coastal management efforts present in this issue-area, into a coordinated regime to move towards SCD. In this way, it maintains focus on the ICZM process at all relevant government levels and among its multiple stakeholders. It also develops adaptive capacities among coastal communities.

Schulich School of Law, Dalhousie University, Winter Term, 2009–2010, 30 March 2010), [unpublished]. 96 SA, Integrated Coastal Management Act, supra note 72, pmbl. 97 Cullinan, supra note 2 at 9.

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ICZM Law Through Recent Decades: Where from Here?

Given the centrality of law to give to it, and to sustain its impetus,98 there has been a proliferation of legislative reform initiatives in several countries to support the implementation of ICZM programs. Because of the nature of management challenges each coastal state face reflects the unique environmental problems that confront its coastline, the legal responses are also diverse among these states. As discussed in chapter six, these responses began with highlighting the importance of coastal law and its emergence as a tool distinct from environmental law, but with the purpose to facilitate the management of the coastal region and the conservation of its environment and resources. From the United States’ Coastal Zone Management Act, 1972 through Sri Lanka’s Coast Conservation Act, 1981, to the Rio Earth Summit, 1992, the coastal legislations of this period seek to ensure the wise use of coastal resources and implement integration by creating coastal zone management authorities. As well, they mandate the development of ICZM plans,99 and provide for landsea integration.100 And these laws also prescribe sanctions for breach to secure compliance with their terms.101 From the Rio Earth Summit in 1992 to 2013, coastal law development to achieve ICZM objectives has been re-cast as achieving sustainable development goals. South Africa’s ICM Act is a classic example of a coastal law that advances sustainable coastal development. A third phase in legislative development for coastal management places emphasis on linking ICZM with other management initiatives, like marine spatial planning, with the broad objective to facilitate ‘Integrated Coastal and Oceans Management’ or ‘Coastal and Marine Spatial Planning.’ Even though rudiments of the third phase can be seen in the Canada’s Oceans Act, 1996, in the UK Marine and Coastal Access Act 2009, and in Sri Lanka’s Coast Conservation (Amendment) Act, 2011, it is the proposed European Union Directive on Marine Spatial Planning102 that specifically heralds the third epoch. 98 99

SA, Integrated Coastal Management Act, supra note 72, pmbl. For an overview on how coastal laws lead to the preparation of ICZM plans, see generally Chs 3 & 6. 100 For instance, see Coast Conservation Act 1981 (No. 57 of 1981, Sri Lanka), s. 42 [Sri Lanka CCA 1981] (defining coastal zone to mean “that area lying within a limit of three hundred metres landwards of the Mean High Water line and a limit of two kilometers seawards of the Mean Low Water line . . .”). 101 For instance, see ibid., s. 29. 102 EC, Proposal for a Directive of the European Parliament and of the Council Establishing a Framework for Maritime Spatial Planning and Integrated Coastal Management [2013] 0074 (COD). For more details, see Ch. 8.

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The overwhelming majority of legislative approaches straddle the first and second phases, and it may take many years for the majority of coastal states to graduate to the third phase because they already find implementing ICZM daunting. These three phases of ICZM legislative development are set out in the figure below. When examined from a legal perspective, it emerges that a raft of legislations classifiable broadly no fewer than four heads, namely, climate change legislation, planning legislation, flood management legislation and coastal legislation, supports CCCA law. In addition to these, there can be several other legal and policy instruments that are relevant to this discourse.103 Some countries

Coastal law through the ages

Features

US Coastal Zone Management Act, 1972 Sri Lanka Barbados, Belize, Israel, Kenya, Cuba, India, Pakistan

Cooperative coastal federalism Land-sea integration Wise use of coastal resources Creation of authority and ICZM plans Permit system

Rio earth summit

ICZM & sustainable coastal development

South Africa, New Zealand, Canada Mediterranean ICZM protocol

Operationalizing sustainable coastal development Principled approach

EU marine spatial planning and ICM directive (draft) UK Marine and Coastal Access Act, 2009 Oceans Act, 1996 Sri Lanka Coast Conservation (Amendment) Act, 2011

Figure 5

First Phase (Land-Sea Interface/ Wise Use of Coastal Resources) (1972‒1992)

Second Phase (Sustainable Coastal Development) (1992‒2013)

Third Phase (Integrated Coastal and Ocean Management) Linking ICZM with marine spatial planning

(2013 onwards)

The Three Phases of ICZM Law Development

103 Water laws and fishing laws may have relevance to coastal climate change adaptation. An example of a water law relevant to CCCA is the Andhra Pradesh Water, Land and Trees Act, 2002, which incorporates mandatory provisions on rain water harvesting, groundwater management, improving tree cover, surface water management, etc. See generally (No. 10 of 2002, Andhra Pradesh, India).

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have specific climate change legislation.104 Dealing mostly with climate change mitigation, they are couched in high generality and rarely cover coastal climate change risks. However, some of the laws that fall into this genre can still spur CCCA actions.105 Planning legislations tend not to explicitly refer to climate change impacts. But, they may still indirectly address the point by requiring that coastal climate change risks be considered in planning decisions,106 or they may expressly mandate response to SLR and coastal hazards.107 Flood management legislations may be useful for CCCA because they may address coastal flooding.108 Nevertheless, given the centrality of coastal laws in relation to its application to the coastal zone, and its potential to subsume and provide for the management of different activities that take place in the coastal zone (like, land–use planning, flood management, pollution control, biodiversity and resources conservation, and implementation of CCCA actions), coastal laws form the keystone of this broad legislative canvas. Ultimately, the value of all these sectoral legislations is their potential to facilitate CCCA actions, and hence all coastal states need to harness this broad legislative canvas to enhance and strengthen CCCA law. This aspect is depicted in Figure 6. A striking feature discernible is that right from the United States federal Coastal Zone Management Act, 1972, to the proposed 2013 European Union Directive on Marine Spatial Planning and ICZM, SLR has express or implied recognition in all coastal laws as a major obstacle to the realization of SCD objectives.109 Accordingly, some of the major coastal management legislations have identified certain primary tools for combating the impacts of climate change

104 For instance, see Climate Change Act 2010 (Vic); Climate Change (State Action) Act 2008 (Tas); Climate Change and Greenhouse Emissions Reduction Act 2007 (SA); Climate Change Act 2008 (UK) [CCAUK]. 105 CCAUK, ibid., part 4. 106 For instance, see the position in New South Wales and Queensland Ch. 6, Parts 6.3.2.3.1 & 6.3.2.3.2. 107 Ibid. 108 Flood and Water Management Act, 2010 (UK), c 29, s. 7 (providing for a national flood and coastal erosion risk management strategy for England). 109 For instance, see Pub L No. 109–58 (codified as amended at 16 USC §1451–1465 §1451(l) (2005)) (the Congress finds that “[b]ecause global warming may result in a substantial sea level rise with serious adverse effects in the coastal zone, coastal states must anticipate and plan for such an occurrence.”); see also ibid., §1452(2)(B); see also Directive for MSP and ICM, supra note 89, arts. 8(2)(f) (adaptation to climate change) & 8 (integrated coastal management strategies to consider adaptation to climate change).

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Coastal Law

Climate Change Law

Planning Law

Flood Management Law

Figure 6

Coastal Climate Change Adaptation Law

Miscellaneous Legal and Policy Instruments (Water Law, Law Relating to Decentralization, Fisheries law, etc.)

The Elements of CCCA Law

and SLR like zoning110 and setback lines.111 In other coastal laws, the response strategy to SLR is subsumed to whatever measures that may be utilized to combat coastal hazards,112 coastal erosion,113 and coastal risk management.114 While a coastal legislation need not spell out each and every CCCA strategy, it is necessary to be explicit about key provisions requiring that climate change and SLR will be taken into account in preparing coastal zone management plans.115 The coastal law must also place limitations on the ability of the state/private property owners to indulge in concrete fortification of the coastlines,116 intimate preference for soft armoring,117 recognize a version of 110 For instance, see generally CRZN, 1991, supra note 88; CRZN, 2011, supra note 88. 111 For instance, see SA, Integrated Coastal Management Act, supra note 72, s. 25 (dealing with establishment of coastal set-back lines). 112 Coastal Protection Act 1979 (NSW), s. 55C(1)(f) [NSWCPA]. 113 Sri Lanka CCA 1981, supra note 100, s. 42 (defining coast conservation to mean the protection and preservation of the coast from sea erosion or encroachment by the sea). 114 NSWCPA, supra note 112, s. 55C. 115 For instance, see Coastal Protection and Management Act 1995 (Qld), ss 20–21(2) (calling upon the minister to consider the effect of climate change on coastal management in preparing the coastal plan). 116 For instance, see NSWCPA, supra note 112, part 4C (providing for the constitution of temporary coastal protection works in the form of sand bags). 117 ICZM Protocol, supra note 73.

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rolling easements to facilitate inland migration of ecosystems,118 impose overlay zoning requirements,119 and, require that future rises in sea level be taken into account in the design and implementation of a project to ensure that it does not become unfit or contribute to hazards during its lifespan due to SLR and other adverse coastal events.120 The law must also emphasize sediment bypassing,121 provide for permitting requirements122 and environmental impact assessments in situating development,123 and ensure the maintenance of public access to the foreshore.124 As part of a holistic response to climate change and SLR, the coastal law must require the state to take measures to increase the natural resiliency of coastal ecosystems to ensure living and vibrant shorelines. In this regard, it must specify protection of habitats, provide for the creation of marine protected areas and their networks to protect stressed species,125 impose restrictions on coastal aquaculture and fishing practices that can degrade the environment,126 and provide for the maintenance of water quality and controls on marine pollution.127 It may utilize penal provisions to secure coastal environmental protection, such as specify sanctions for the destruction of corals.128 In short, the coastal law, as enabling legislation is intended to facilitate ICZM implementation—a process that must also promote, inter alia, CCCA. The combination of ICZM and CCCA that a coastal law must accommodate also makes it a social welfare legislation, because, in practice, it is a tool to protect resources and environment on which teeming populations build

118 119 120 121

122 123 124 125 126 127 128

For more on rolling easements, see Ch. 6, Part 6.3.1. SA, Integrated Coastal Management Act, supra note 72, s. 62. For a discussion on this topic in relation to Australia, see Ch. 6, Part 6.3.2. US, Office of Ocean & Coastal Resource Management, Dep’t of Commerce & State of Texas, Combined Coastal Management Program and Final Environmental Impact Statement for the State of Texas (Office of Ocean & Coastal Resource Management, State of Texas, 1996) at part II 6–20. Sri Lanka CCA 1981, supra note 100, s. 14. Ibid., s. 16. SA, Integrated Coastal Management Act, supra note 72, s. 18 (designating coastal access land to secure public access to coastal public property). Oceans Act, SC 1996, c 31, s. 35 (constitution of marine protected areas). NZRMA, supra note 79. SA, Integrated Coastal Management Act, supra note 72, s. 69; see also ibid., ss. 70–72; NZRMA, ibid., s. 15. For instance, see Barbados CZMA 1998, supra note 73, s. 22 (prohibition on harvesting of coral).

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their lives,129 as South Asia eloquently evidences. The goal of such a dedicated law must be to carefully engineer development for the short and long terms that can respond to expected SLR and climate change impacts through risk-management that minimizes future hazards. In particular, the adaptive capacities of coastal communities must be augmented, and the biological productivity of the coastal environment, especially within the coastal zone, must be maintained. 7.5 Conclusion Even though ICZM has finally come of age, the coastal environments in most parts of the world continue to deteriorate. As well, the challenges posed by climate change on coastal zones continue to loom like a Damocles sword over our heads to compound this negative image. It is within the context of this overall scenario that we have to appreciate the need to streamline ICZM implementation and secure CCCA. Moreover, if ICZM is to make its full contribution to SCD, it is essential that coastal managers find practical ways to integrate gender and equity concerns, respect inclusiveness, reduce poverty, ensure food security, provide for greater citizen involvement in decision-making, improve coastal resilience, reduce vulnerability and provide for CCCA within the scheme of the programme. And what better way to do so than through the instrumentality of law? In drawing the foregoing sections together, it is clear that a coastal law is definitely a harbinger of change for degraded coastlines and an essential prerequisite to propel the move towards SCD. Even though legislation is key to an ICZM process, enacting new coastal laws is hardly a guarantee that coastal management will be effective and sustainable in the long-run. However, a legislative reaction in the form of an omnibus legal framework does provide a minimum guarantee that contemporary coastal management decisions will start with a more integrated picture of the coastal zone, within which CCCA decisions can be predicated and implemented. The legal mapping in this chapter and the preceding one clearly demonstrates that without adequate legal backing, ICZM is akin to a rudderless ship desperately trying to stay the course. In the end, the time has come to identify and provide legal recognition to the essential principles and elements of an ICZM-friendly law (also promotive of CCCA) which the coastal nations in the South Asian region can utilize to enact/re-engineer their respective national-level coastal laws. In this regard, 129 Barbados CZMA 1998, ibid.; Sri Lanka CCA 1981, supra note 100.

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the national case studies (discussed in the previous chapters) and these broad incantations on different facets of coastal lawmaking provide sufficient fodder. Since the coastal countries of South Asia are each unique in terms of their national capacities to implement ICZM and CCCA, a regional level instrument that identifies the core legal principles/elements for a national coastal law seems to be the best way forward, as the next part will attest.

Part 4 New Directions for Coastal Management Regional Regime-Building in South Asia

∵

Due to the unique characterestics of coastal ecosystems, it is not possible to barricade coastal regions, waters and ocean currents. Naturally, activities in one part of the coastal environment impact other regions. Climate change and SLR do not recognize man-made boundaries, and these phenomena can negatively impact the coastal regions of several countries at the same time. This increases the need and relevancy of regional regimes that can support concerted action by a group of nations that are geographically and environmentally inter-linked to the problems posed by climate change and SLR. This theme is developed in this part. Chapter eight examines the state of regional coastal and marine cooperation in coastal South Asia and analyzes lessons that this region can learn from other regional coastal management efforts on ICZM and CCCA. Chapter nine articulates a vision for a regional regime on ICZM and CCCA for South Asia. It identifies elements that can inform the development of a prospective regional regime on coastal cooperation. The proposal articulated is founded on the socio-economic and ecological conditions of the region, and the status of legal regulation of ICZM and CCCA, which earlier chapters have set out.

chapter 8

A Regional Regime for ICZM and Coastal Climate Change Adaptation in South Asia 8.1 Introduction Environmental regionalism is one of the pivotal approaches identified in the legendary Stockholm Conference of 1972 for cooperative resources and environment management. The conference recommended that “. . . [g]overn­ ments . . . need to consult bilaterally or regionally whenever environmental conditions or development plans in one country could have repercussions in one or more neighboring countries.”1 The Stockholm Declaration emphasised that “[a] growing class of environmental problems, because they are regional or global in extent . . . will require extensive cooperation among nations . . . in the common interest.”2 The Brundtland Report reiterated this message with its call for new regional and sub-regional arrangements to deal with trans­ boundary environmental resource issues especially among developing countries.3 Principle 27 of the 1992 Rio Declaration, the United Nations Framework Convention on Climate Change (UNFCCC),4 Convention on Biological Diversity, 1992,5 Johannesburg Plan of Action,6 and the recently concluded 1 “Recommendations for Action at the International Level” in UNGA, Report of the United Nations Conference on the Human Environment held at Stockholm, 5–16 June 1972 (New York: United Nations, General Assembly, 1972) at 6C, recommendation 3. 2 Declaration of the United Nations Conference on the Human Environment, 16 June 1972, 11:6 ILM 1416, ¶7. 3 World Commission on Environment & Development, Our Common Future (Oxford: Oxford University Press, 1987) at 315. 4 United Nations Conference on Environment and Development: Framework Convention on Climate Change, 19 June 1993, 31 ILM 849 (adopted at New York 9 May 1992) [UNFCCC], art. 4(1)(b) (parties to implement regional programs containing measures to mitigate climate change). 5 United Nations Conference on Environment and Development: Convention on Biological Diversity, 1993, 5 June 1992, 31 ILM 818 (entered into force 29 December 1993), pmbl; see also ibid., art. 20(3) (developing country parties to avail financial resources relating to CBD implementation through regional channels). 6 “Plan of Implementation of the World Summit on Sustainable Development” in UN, Report of the World Summit on Sustainable Development Johannesburg, South Africa, 26 August–

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004282209_��9

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Rio+20 reaffirmed the regional dimensions of sustainable development and its complementary and facilitative role in translating sustainable development policies into action at the national level.7 Regional approaches to marine environmental protection have proved to be useful because ocean resources and uses are inherently transboundary in nature.8 The United Nations Convention on the Law of the Sea, 1982 (LOSC) provides the necessary impetus to tackle marine environmental problems through regional mechanisms,9 and this has essentially been institutionalized under the aegis of the United Nations Environment Programme (UNEP) Regional

4 September 2002, A/CONF.199/20* (New York: UN, 2002) at 20, ¶4 (advocates strengthening institutional arrangements for sustainable development at the regional level). 7 UN RIO+20 United Nations Conference on Sustainable Development, The Future We Want, A/CONF.216/L.1*, 19 June 2012, ¶¶97–103. 8 Philip Saunders, “Maritime Regional Cooperation: Theory and Principles” in Mark J Valencia, ed., Maritime Regime Building: Lessons Learned and Their Relevance for Northeast Asia, vol. 36, Publications on Ocean Development (The Hague: Martinus Nijhoff Publishers, 2001) 1 at 4. 9 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397, 21 ILM 1261 (entered into force 16 November 1994), [LOSC] arts. 61–70, 116–20, 122–23, 197, 237, 311 & part XII. For more details, see Nilufer Oral, Regional Co-operation and Protection of the Marine Environment under International Law: The Black Sea, David Freestone, ed., 16 Legal Aspects of Sustainable Development (The Netherlands: Martinus Nijhoff, 2013) at 39. The importance of cooperation in protecting the marine environment has been stressed in ITLOS jurisprudence. In the Dispute Concerning the Mox Plant, International Movements of Radioactive Materials, and the Protection of the Marine Environment of the Irish Sea (Ireland v United Kingdom), Request for Provisional Measures and Statement of Case of Ireland (9 November 2001) (International Tribunal for the Law of the Sea) ¶¶56–81. In its order, the International Tribunal for the Law of the Sea called upon Ireland and the United Kingdom to cooperate by entering into consultations to exchange information, monitor effects and devise appropriate measures to prevent pollution of the marine environment from the operation of the MOX plant. For the text of the order, see generally The Mox Plant Case (Ireland v United Kingdom), 10, Order (3 December 2001) (International Tribunal for the Law of the Sea). Considering that the duty to cooperate is a fundamental principle in the prevention of marine environment pollution under Part XII of the LOSC and general international law, Malaysia and Singapore were directed to cooperate by establishing a group of independent experts to study the effects of Singapore’s land reclamation. See also Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v Singapore), 12, Order (8 October 2003) 23 (International Tribunal for the Law of the Sea) ¶¶92 & 106; Alan Boyle, “Globalism and Regionalism in the Protection of the Marine Environment” in Davor Vidas, ed., Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Norway: Cambridge University Press, 2000) 19 at 22, 26.

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Seas Programme.10 The first regional seas treaty was the 1976 Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution. Since then, 13 Regional Seas Programmes involving 143 countries and a complex network of treaties, protocols, action plans, institutional arrangements and trust funds have been established.11 Climate change and sea level rise (SLR) have far-reaching implications for the future development and progress of South Asia, where the developing coastal countries have to deal with the negative impacts of climate change through coastal climate change adaptation (CCCA) as part of their efforts to promote socio-economic development. As discussed in preceding chapters, South Asia is one of the least integrated regions of the world. Several longstanding disputes have undermined cooperative engagement to solve their common problems. This chapter explains the need for a regional framework on ICZM to help South Asian coastal countries progress toward sustainable coastal development (SCD). There are various regional and sub-regional institutions in South Asia, but these have not fostered much cooperation among the coastal states for purposes of tackling coastal management issues. Critical among these is transboundary water sharing, which has not progressed toward maintaining the ecological health of the Indus and Ganges-Brahmaputra deltas on which large segments of their populations depend for socio-economic survival. Section 8.2 provides an overview of the regional and sub-regional arrangements relevant to coastal management and discusses the history of the disputes between the coastal states of this region that has inhibited regional cooperation. Section 8.3 then explains the significance of a regional approach to ICZM implementation by drawing on the experiences of the Mediterranean and the European Union (EU). These regimes influence the development of national level ICZM responses and adaptation to SLR under their respective regional seas cooperative arrangements. Section 8.4 explores some precepts of the regime theory or international relations theory to explain state practice and offers insights on how South Asia’s coastal states can coalesce their divergent interests around common objectives to enable them to pursue ICZM and CCCA implementation through results-oriented cooperation. The importance of such a strategy is re-emphasized through a Strength, Weaknesses, Opportunities and Threats (SWOT) analysis in section 8.5, to assess the benefits of doing so.

10

Julien Rochette & Raphaël Billé, “ICZM Protocols to Regional Seas Conventions: What? Why? How?” (2012) 36 Mar Pol’y 977 (ScienceDirect) [Rochette & Billé, “ICZM Protocols”]. 11 UNEP, About, online: UNEP, Home, About .

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Coastal Management in South Asia: Regional and Sub-Regional Arrangements

8.2.1 The South Asian Seas Regional Programme It was to address issues relating to the accelerated degradation of the world’s oceans and coastal areas through “sustainable management and use of the marine and coastal environment, by engaging neighbouring countries in comprehensive and specific actions to protect their shared marine environment,”12 that pursuant to the Stockholm Conference, the UNEP launched the Regional Seas Programme in 1974.13 Generally, these different programs function through an action plan, supported by a convention.14 In 1981, the South Asian countries established the South Asia Co-operative Environment Programme (SACEP) as an inter-governmental organization “to promote and support protection, management and enhancement of the environment in the region.”15 At the request of the South Asian coastal countries in 1982, the Governing Council of UNEP designated the South Asian Seas as an area for close collaboration between the UNEP, SACEP, and the concerned governments for the formulation of an action plan for the environmental protection of this region under the Regional Seas Programme.16 The “Action Plan for the Protection and Management of the Marine and Coastal Environment

12 UNEP, Regional Seas Programme: About, online: UNEP, Regional Seas Programme, About Regional Seas . 13 Ibid. 14 United Nations Environment Programme Mediterranean Action Plan for the Barcelona Convention, online: UNEP/MAP . 15 For an overview on the SACEP, see About Us: An Overview, online: SACEP, About SACEP, An Overview . For the text of the Colombo Declaration on the South Asia Co-Operative Environment Programme (SACEP), see Documents: MoUs & LoAS/ Declarations, online: SACEP, Documents: MoUs & LoAS/ Declarations, The Colombo Declaration On the South Asia Co-Operative Environment Programme (SACEP) . The Colombo Declaration on SACEP of 1981 and the articles of association of the SACEP set the legal foundation for this organization. The organizational framework is as follows: a Governing Council, Consultative Committee, National Focal Points, Subject Area Focal Points, and the Secretariat. The Governing Council is constituted by Ministerial level representation. 16 Action Plan for the Protection and Management of the Marine and Coastal Environment of the South Asian Seas Region, ¶1, online: SACEP [SASAP].

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of the South Asian Seas Region,” or the South Asian Seas Action Plan (SASAP), was adopted in March 1995, and entered into force in February 1997.17 All five coastal countries of South Asia participate in SASAP, with SACEP serving as the Action Plan secretariat.18 Periodic meetings of representatives of the governments of member states review progress in the implementation of the action plan and decide on future priorities and make financial and institutional arrangements to support these activities.19 The primary intent of SASAP “is to protect and manage the marine environment and related coastal ecosystems of the region in an environmentally sound and sustainable manner.”20 It focuses primarily on four core areas: ICZM,21 oil spill contingency planning, human resource development, and the environmental effects of land-based activities.22 The document reiterates that ICZM is “a priority element for environmentally sound and sustainable development of marine and coastal areas in the region,” and identifies certain activities for its “staged implementation.”23 Even though there is no regional convention to guide its actions, SASAP follows existing global environmental and maritime conventions, and considers the LOSC as its “umbrella Convention.”24 But after the adoption of the Action Plan under the SASAP, only limited progress, if any, has been made in operationalizing ICZM in the member countries.25 One important reason for this seems to be the absence of a specific regional convention and related protocols to mandate the activities set out under the Action Plan.26 This contrasts with the 10 Regional Seas Programmes that are 17 Ibid. 18 Ibid., ¶18. 19 Ibid., ¶19. 20 UNEP, Regional Seas Programme: South Asian Seas—Governing Instruments, online: UNEP, Regional Seas Programme, Non-UNEP Administered Programmes, South Asian Seas, Governing Instruments [UNEP, Regional Seas Programme]. 21 SASAP, supra note 16 at 7–8. 22 Ibid. at 9–11. 23 Ibid. at 7–8. 24 UNEP, Regional Seas Programme: South Asian Seas, online: UNEP, Non-UNEP Administered Programmes, South Asian Seas . 25 LBSMP has also met a similar fate. See Daud Hassan, Protecting the Marine Environment from Land-Based Sources of Pollution: Towards Effective International Cooperation (Hampshire: Ashgate Publishing Ltd, 2006) at 162. 26 See ibid. Conventions provide the “key legal basis” for implementing the action plans. See Michael A. Jacobson, “The United Nations’ Regional Seas Programme: How Does it Measure Up?” (1995) 23 Coastal Mgmt 19 at 21.

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guided by regional conventions.27 Though effective implementation of action plans is not guaranteed by the presence of a convention and protocols, the structure represents normative discipline to foster a more strident demand on parties to commit to the objectives of the regime. For instance, the Regional Seas Programme for the Eastern African region28 comes under the Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean, 1985 (Nairobi Convention).29 The primary emphasis of the Nairobi Convention is to control pollution from land-based sources,30 vessel sources,31 from dumping,32 transboundary movement of hazardous wastes,33 and airborne pollution.34 It also provides for biodiversity protection.35 To achieve these objectives, the convention emphasizes state-party cooperation,36 and prescribes environmental impact assessment37 and measures to prevent environmental damage from engineering activities like land reclamation and dredging.38 It also asks the parties to develop rules 27

28

29

30 31 32 33 34 35 36 37 38

Apart from the South Asia Seas, the East Asian Seas and the Northwest Pacific have no regional conventions. For more details on conventions and protocols by regional sea area, see Jacobson, ibid. at 22–23. Also referred to as the Western Indian Ocean, it covers 10 states. Welcome to the Nairobi Convention, online: UNEP . Coastal South Asia shares several similarities with the Nairobi Convention Area. See Doris Mutta, “Nairobi Convention” (PowerPoint presented to the 1st African Regional Targeted Workshop for GEF IW Projects Rhodes University, Grahamstown, South Africa, April 2–4 2012). The parties to the Nairobi Convention are in the process of developing an ICZM protocol. The Nairobi Convention was signed in 1985 and came into force in 1996. This convention was amended and adopted in April 2010. For text, see “Final Text of the Amended Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean, Adopted in Nairobi, Kenya on 31 March 2010, UNEP(DEPI)/EAF/CPP.6/8a/Suppl” in UNEP, Final Act of the Conference of the Plenipotentiaries for the Adoption of the Amended Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean, Adopted in Nairobi, Kenya on 31 March 2010, UNEP(DEPI)/EAF/CPP.6/10/ Suppl [“Amended Nairobi Convention”]. Ibid., art. 7. Ibid., art. 5. Ibid., art. 6. Ibid., art. 9. Ibid., art. 10. Ibid., art. 11. Ibid., arts. 12 & 15. Ibid., art. 14. Ibid., art. 13.

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to fix liability and compensation “for damage resulting from pollution of the Convention area.”39A significant feature of the Nairobi Convention is that it recognizes the threat of climate change and SLR.40 Due to failure to seriously carry out the duties it prescribes, the coastal environment of the Nairobi Convention area is suffering from the adverse impacts of human pressures and unsustainable development practices.41 Presently, work is ongoing to “revitalize” the Nairobi regime so as to retain its relevance to the ocean management challenges of the region. To this end, the amended convention provides for bi-annual meetings of contracting parties to review its implementation42 and to adopt additional protocols.43 Thus far, the parties have adopted three protocols,44 and work is in progress to develop a protocol on ICZM.45 The amendments to the Nairobi Convention and the protocols adopted under it have extended and deepened the regime’s normative reach, and advanced its “regulatory comprehensiveness.”46 Though its practical implementation has been held back by lack of funding, the ongoing 39 40 41

Ibid., art. 16. Ibid., pmbl. See generally David M. Dzidzornu, “Marine Environmental Protection Under the Nairobi and Abidjan Regimes: Working Toward Functional Revitalization?” in Aldo Chircop, Scott Coffen-Smout & Moira McConnell, eds, Ocean Yearbook, vol. 26 (Leiden: The Netherlands, 2012) 381 [Dzidzornu, “Marine Environmental Protection”]. 42 “Amended Nairobi Convention,” supra note 29, art. 18; see also ibid., art. 27 (dealing with compliance and enforcement). 43 Ibid., art. 19. 44 UNEP, Final Act of the Conference of the Plenipotentiaries for the Adoption of the Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities, Adopted in Nairobi, Kenya on 31 March 2010, UNEP(DEPI)/EAF/CPP.6/11/Suppl; “Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region” in UNEP, Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region and Related Protocols (New York: UN, 1985) 19; “Protocol Concerning Co-operation in Combating Marine Pollution in Cases of Emergency in the Eastern African Region” in UNEP, Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region and Related Protocols (New York: UN, 1985) 33. 45 See generally UNEP, Proposed Fifth Draft Integrated Coastal Zone Management Protocol to the Amended Nairobi Convention, UNEP(DEPI)/EAF/LTWG5/3 (3 August 2011); see also “Decision CP7/3: Development of a Protocol on Integrated Coastal Zone Management” in UNEP, Adopted Decisions for COP7, UNEP(DEPI)/EAF/CP.7/5/en (14 December 2012) at 3; Rochette & Billé, “ICZM Protocols”, supra note 10 at 977 & 979. 46 Dzidzornu, “Marine Environmental Protection”, supra note 41 at 384.

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commitment to make it functionally effective has, however, heightened awareness regarding the importance and need for sustainable coastal and marine development in the East African marine region. 8.2.1.1 Discussion As pointed out earlier, in the absence of its own framework convention, the LOSC is the overarching legal instrument that guides SASAP implementation.47 But the South Asian coastal countries are hamstrung by capacity constraints and have not been able to implement the SASAP by working out the LOSC prescriptions relevant to doing so. For instance, Part XII of the LOSC which deals with “protection and preservation of the marine environment,” sets out general provisions for controlling all sources of marine pollution and specific provisions for certain types of marine pollution. In giving effect to these provisions, the SASAP’s annex IV is devoted to the protection of the marine environment from land-based activities (LBSMP). However, the South Asian coastal countries have not been able to make much headway in regulating and controlling LBSMP. For instance, in regard to the Bay of Bengal, it is said that, “[d]ue to institutional, strategic and financial constraints, international recommendations policies and strategies related to LBSMP are not implemented in this Sub-region.”48 Similarly, a study dealing with stocktaking of marine protected areas49 points out that in South Asia, “MPAs are far from being fully ecologically representative . . . [M]ost were declared before the importance of these concepts was fully understood . . . 60% of MPAs lie in the Maldives and the Andaman and Nicobar Islands, most of which are very small sites . . .”50 Even though Regional Seas Programmes based on the convention-protocol approach may not have resulted in healthy oceans and coasts elsewhere,51 they have nevertheless, underscored the importance and utility of coopera47 UNEP, Regional Seas Programme, supra note 20. 48 Hassan, supra note 25. 49 Even though marine protected areas are not per se an LOSC prescription, several provisions in it fortify the ability of coastal states to establish them. Robin Kundis Craig, “Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas” (2005) 20 J Land Use & Envtl L 333 at 361 (HeinOnline). As well, SASAP as part of “environmental management” emphasizes “[c]o-operation in the establishment and management of national protected coastal and marine habitats, in the establishment of a regional network of protected areas, in joint activities to protect coastal ecosystems . . .” SASAP, supra note 16, ¶10.12. 50 UNEP-WCMC, National and Regional Networks of Marine Protected Areas: A Review of Progress, Regional Seas (UNEP, 2008) at 69. 51 See generally Suh-Yong Chung, “Is the Convention-Protocol Approach Appropriate for Addressing Regional Marine Pollution?: The Barcelona Convention System Revisited”

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tion at the regional level. That arrangement has produced greater awareness and, in certain situations, even led to the development of dynamic, responsive and cooperative regimes and the use of systemic, ecosystem-based and integrated approaches to the problems that confront the marine environment. More importantly, the convention-protocol approach infuses life into the regime, and helps it to retain vitality by bringing about normative alignment with evolving environmental principles and norms. As well, the periodic meetings of the conferences of parties helps to modulate the socio-political context of the implementation of the convention according to changing needs and circumstances.52 Furthermore, the convention’s influence impels parties to improve the regulatory standards and controls they have at their national levels. As mentioned earlier, the first Regional Seas initiative based on the framework convention-protocol approach is the Barcelona Convention System for the Mediterranean Sea, which is targeted to ensuring a clean-up of the region’s marine pollution. Since its inauguration, the system has evolved with the adoption of action plans and additional protocols. This format has influenced other Regional Seas Programmes, particularly those that are sponsored by the UNEP, which was instrumental in the establishment of this system. In practice, however, the Mediterranean regime is widely considered as a “regime of low effectiveness” due to its “low problem-solving capacity.”53 But, this does not mean that it has no merits. In this regard, the following observation on the Mediterranean regime is instructive: [a]s a laboratory for regime-building, the Mediterranean offers many useful insights . . . While it may be true that the Mediterranean is not cleaner today and it is true that objectives and standards have frequently not

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(2004) 13 Penn St Envtl L Rev 85 at 103 (HeinOnline) [Chung, “The Convention-Protocol Approach”]. In contrast, the meetings of the parties of the South Asian region are more bureaucratic and are limited to reviewing its action plan. Jon Birger Skjærseth, “The Effectiveness of the Mediterranean Action Plan”, in Edward L. Miles et al., eds, Environmental Regime Effectiveness: Confronting Theory with Evidence (Cambridge: The MIT Press, 2002) 311 at 311; see also Chung, “The Convention-Protocol Approach”, supra note 51 (referring to the system’s inability to guarantee effective implementation of its policies, the hard-law based approach which led to the acceptance of low standards, and the lack of financial resources that hampered the fructification of the regime).

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been met or postponed, the process of co-operation has attained value per se, whether it produces results or not . . .54 When the South Asian Seas Programme is contrasted with the framework convention-protocol approach of the Mediterranean, East Africa and other regions, it is clear that the South Asian Regional Seas Programme is devoid of the benefits that accrue to parties that follow the framework conventionprotocol approach. In this sense, there is merit in advocating for the implementation of the South Asian Regional Seas Programmes via a regional convention-like instrument and related protocols.55 When the underlying intent of the LOSC principles is plotted in a regional context via a regional convention, implementation tends to be more contextual, binding and relevant.56 8.2.2 The SAARC, ICZM and Coastal Climate Change Adaptation The most obvious and ambitious initiative to foster regionalism in South Asia received a fillip with the establishment of the SAARC in 1985.57 Within two years, environmental issues, including climate change and natural disaster management, emerged as potential candidates for cooperation.58 Presently, the SAARC Environment Ministers meets periodically to take stock of progress and to enhance regional cooperation in the areas of environment,59 climate change and natural disasters.60 Another important highlight in the development of the environmental agenda is the SAARC Environment Action 54

Aldo Chircop, “The Mediterranean: Lessons Learned” in Mark J. Valencia, ed., Maritime Regime Building: Lessons Learned and Their Relevance for Northeast Asia, vol. 36, Publications on Ocean Development (The Hague: Martinus Nijhoff Publishers, 2001) 27 at 44. 55 Jacobson, supra note 26. 56 LOSC, supra note 9, art. 197. 57 For an overview of SAARC, see Lawrence Sáez, The South Asian Association for Regional Cooperation (SAARC): An Emerging Collaboration Architecture (Oxon: Routledge, 2011) at 8–29. The following countries are members of the SAARC: Afghanistan, Pakistan, India, Bhutan, Nepal, Bangladesh, Sri Lanka and Maldives. The following have observer status: European Union, China, United States, Japan, South Korea, Mauritius, Iran, Australia, and Myanmar. South Asian Association for Regional Corporation, online: SAARC . 58 SAARC, Area of Cooperation, online: SAARC, Areas of Cooperation, Environment [SAARC, Area of Cooperation]. 59 Ibid. (role of SAARC in environmental cooperation). 60 Subsequent to the Indian Ocean tsunami, a comprehensive framework on Disaster Management (2006–2015) aligned with the Hyogo Framework of Action (2005–2015) was adopted to address the specific needs of disaster risk reduction and management in

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Plan adopted at the Third Meeting of the environment ministers at Malé in 1997.61 This plan identified key concerns and set parameters and modalities for regional cooperation. It also cast the primary responsibility regarding its implementation on member states through the National Action Plans on Environment,62 along with several other measures,63 including the creation of a regional treaty on environmental cooperation.64 Consisting of 12 articles, the primary objective of the SAARC Convention on Cooperation on Environment (SAARC Environment Convention) is to “promote cooperation among the Parties in the field of environment and sustainable development, on the basis of equity, reciprocity and mutual benefit, taking into account the applicable policies and legislation in each Member State.”65 The Convention identifies the potential areas for cooperation, to include climate change and management of coastal and coral reefs, river ecosystems, and seawater and freshwater quality.66 In all cases, cooperation extends to the exchange of best practices and knowledge, capacity-building, and transfer of eco-friendly technologies.67 This takes the form of collaboration between parties, academic and research institutions, the SAARC regional centers, private sector institutions and civil society, and any other form as agreed to by the parties.68 The SAARC Environment Convention contemplates the creation of a Governing Council that comprises the environmental ministers of Member States who are to meet once every two years69 to provide, inter alia, policy directions and guidance. Additionally, they are to adopt recommendations, South Asia. The SAARC has also established a Disaster Management Centre based in New Delhi in 2006. SAARC, Area of Cooperation, supra note 58. 61 O.P. Goel, India and SAARC Engagements, vol. 1 (New Delhi: Gyan Publishing House, 2004) at 41. 62 Ibid. at 42. 63 The SAARC Coastal Zone Management Centre established in 2004, the SAARC Forestry Centre in 2007, and the South Asia Environment Outlook, 2009, are some of the steps taken to implement the Action Plan. 64 Goel, supra note 61 at 42. A SAARC Convention on Cooperation on Environment as stipulated under Item 17 (Legal Framework) of the Action Plan was signed during the Sixteenth SAARC Summit (Thimphu, 28–29 April 2010). SAARC, Area of Cooperation, supra note 58. 65 SAARC Convention on Cooperation on Environment, Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, Sri Lanka, 29 April 2010, art. I. 66 Ibid., art. II. 67 Ibid. 68 Ibid., art. III. 69 Ibid., art. V.

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plans and programs on the areas identified for cooperation, commission studies and scientific data collection, and facilitate technology transfer.70 Decisions are to be unanimous.71 To assist the Governing Council and to ensure the “full and effective implementation of the convention,” there is provision for yearly meetings by senior officials.72 Disputes, if any, in relation to the interpretation or application of the convention, are to be settled by recourse to negotiation.73 Even though the SAARC Environment Convention is not yet in force, it obviously represents an important milestone, in environmental regional cooperation, given that prior to its conclusion, regional cooperation on environmental matters was very tenuous. The SAARC Member States accord high priority to issues related to climate change. In “[n]oting the urgency of the immediate need for dealing with the onslaught of climate change including sea level rise,”74 the SAARC Environment Ministers, through the Dhaka Declaration on Climate Change 2008, agreed to initiate and implement programs and measures for adaptation and also called upon UNFCCC Annex-I parties to provide additional resources to help these nations fulfill their commitments under the climate change regime.75 Additionally, the SAARC developed an Action Plan on Climate Change, whose objective is to secure regional cooperation and south-south support for technology and knowledge transfer.76 One of the major thematic areas identified in this document is adaptation to climate change impacts such as SLR, salinity intrusion, and coastal and soil erosion.77 In acknowledging that the impacts of climate change transcend national boundaries, and that for the SAARC developing countries, climate change represents the dual challenge of having to address its negative impacts and pursuing socio-economic development, the Thimphu Statement on Climate Change, 2010, emphasizes the need for

70 Ibid. 71 Ibid., art. V.3. 72 Ibid., art. V.2. 73 Ibid., art. VII. 74 SAARC Environment Ministers Dhaka Declaration on Climate Change, Dhaka, 3 July 2008, at 2, online: SAARC Workshop, Workshop Document, SAARC Declaration on Climate Change at Dhaka . 75 Ibid. 76 SAARC Action Plan on Climate Change, ¶B, online: SAARC Workshop, Workshop Document, SAARC Action Plan on Climate Change (entitled “Objectives of the SAARC Action Plan on Climate Change”). 77 Ibid., ¶C (entitled “Thematic Areas of the Regional Action Plan on Climate Change”).

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a regional response to climate change impacts.78 In this regard, it calls for the establishment of an Inter-governmental Expert Group on Climate Change to develop policy direction and guidance for regional cooperation and this body is to meet twice a year to review the implementation of this Statement.79 Even while stressing the importance of adaptation, the plan does not articulate specific adaptation actions.80 However, the Statement suggests the creation of two important bodies: 1) a SAARC Inter-governmental Marine Initiative (supported by the SAARC Coastal Zone Management Centre) “to strengthen the understanding of shared oceans and water bodies in the region and the critical roles they play in sustainable living;” and 2) a SAARC Inter-governmental Climate-related Disasters Initiative (SAARC Disaster Management Center) to integrate climate change adaptation with disaster risk reduction.81 The SAARC nations have developed common positions on climate change, an indication that these nations realize the usefulness of regional cooperation in this area.82 These common positions point out that South Asia’s low-lying areas, long coastlines, island regions, and flood plains are vulnerable to climate change.83 Due to these vulnerabilities and the inadequate means and limited capacities available to South Asian countries, developed countries are called upon to commit to ambitious and binding greenhouse gas emission reduction targets and to provide adequate financial resources for adaptation, national adaptation program of action development, capacity building, and technology development and transfer to help South Asia combat climate change.84 78

79 80 81 82

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Thimphu Statement on Climate Change, Sixteenth SAARC Summit Thimphu, 28–29 April 2010, SAARC/SUMMIT.16/15, online: SAARC Home, Declarations, Statements [Thimphu Statement on Climate Change]. Parties are to ensure the timely implementation of the Thimphu Statement on Climate Change. Seventeenth SAARC Summit, ADDU Declaration, “Building Bridges” (14 November 2011), ¶6, online: SAARC, ADDU Declaration . Thimphu Statement on Climate Change, ibid., ¶¶(ii), (xvi). Ibid., opening recital. Ibid., ¶¶(x), (xiv). SAARC Statement on Climate Change United Nations Climate Change Conference (COP15) Copenhagen, Denmark, 7–18 December 2009, online: SAARC, Areas of Cooperation, Environment, COP Meetings, Related Documents, COP 15 SAARC Statement [SAARC Statement on Climate Change]; Common SAARC Position: United Nations Climate Change Conference (COP 16/CMP 6) Cancun, Mexico, 29 November– 10 December 2010, online: online: SAARC, Areas of Cooperation, Environment, COP Meetings, Related Documents, Common SAARC Position for COP16 [Common SAARC Position]. See generally Common SAARC Position, ibid. SAARC Statement on Climate Change, supra note 82.

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Arguably, the most important development under the SAARC regional framework85 that offers the best prospect for ICZM and CCCA development is the establishment of the SAARC Regional Coastal Zone Management Centre in 2005, with its head office at Malé. The primary objective of this Centre is to “promote cooperation in planning, management and sustainable development of the coastal zones, including research, training and promotion of awareness in the region.”86 The coastal countries in this region are also in the process of setting up specialized institutions for coastal zone management. For instance, India has taken steps to create a “National Centre for Sustainable Coastal Management.”87 Such specialised research bodies can support the creation of epistemic communities in the South Asian region which in turn can facilitate the development of the science of ICZM, its policy, management and legal dimensions. 8.2.2.1 Discussion Even though decades have passed and several discussions have been held, tangible results have not been produced at the SAARC level. This means that the regional prescriptions on ICZM and CCCA in South Asia are still in their embryonic stage. Presently, ICZM is embodied in a patchwork of lofty ideals and political statements that merely underline the need and importance of the methodology, with no specific roadmaps on how these statements are to be translated into practice. Despite having a rather broad mandate to further regional cooperation, neither platform, i.e., the South Asian Regional Seas Programme with its SASAP, and the SAARC, has made substantial headway to mainstream CCCA. Given the state of ICZM in South Asia, it is clear that SASAP, with its emphasis on ICZM development and implementation, has generally been ignored by the member states. At the same time, SAARC, in its almost three decades of existence, has only facilitated some degree of economic integration. But this achievement cannot be sustained nor built upon without requisite attention to environmental and social issues. Even though SAARC has formulated a basic frame for the development of environmental cooperation, disputes between states have obstructed cooperation and prevented it from addressing contentious issues like transboundary water sharing. 85 86 87

Charter of the South Asian Association for Regional Cooperation, 1985, ¶1, online: SAARC Disaster Management Centre . Objectives, online: SCZMC . For further information, see National Centre for Sustainable Coastal Management, online: NCSCM ; see also The International Centre for Climate Change & Development, online: ICCCAD .

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An inappropriate focus in the regional regime is that though South Asia has one of the lowest carbon footprints in the world (India being the sole exception), the emphasis of regional efforts is on mitigation when it should be on adaptation.88 This ignores the fact that this region will bear the brunt of climate-change-related impacts, including SLR. As discussed previously, with its dense population and deep poverty, even slight changes in climate will prove particularly catastrophic to the region due to its poor adaptive capacity in the face of the fragile subsistence economies, based primarily on coastal resources, on which the poor build their lives. Climate change adaptation is essentially an extension of good developmental practice, and these countries must invest in mainstreaming it by the instrumentality of a regional regime. As well, in addressing environmental, climate change and natural disaster management issues, the SAARC has steered clear of contentious issues like transboundary water sharing.89 In fact, the distrust and recalcitrant attitude of the concerned countries has prevented realization of the full benefits of regional integration efforts. This is explained more fully in the next subsection. For now, it is useful to point out that the status of the Bay of Bengal as a large marine ecosystem has brought together both the South Asian and other coastal states that are littoral to the Bay to engage in its cooperative management. These eight countries are Bangladesh, India, Indonesia, Malaysia, the Maldives, Myanmar, Sri Lanka and Thailand, and they are grouped under the Bay of Bengal Large Marine Ecosystem Project (BOBLME) to improve regional management of the Bay of Bengal environment and its fisheries.90 The Global Environment Facility, the Norwegian Agency for Development Cooperation, the Swedish International Development Cooperation Agency, the Food and Agriculture Organization of the United Nations (FAO), and the National Oceanic and Atmospheric Administration, supports this project, with the FAO 88

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With 24.6 per cent of the world population, the CO2 emissions in South Asia is only 7.8. per cent of the total CO2 emissions. The US with just above 4.0 per cent of the world population, contributes 21.1 per cent of the CO2 emissions. UNDP, Unequal Carbon Footprints: Shares of Emissions and Population, online: UNDP . The Thimphu statement emphasizes that South Asia should become a world leader in low-carbon technologies and renewable energy. Thimphu Statement on Climate Change, supra note 78. James Kraska, “Sustainable Development is Security: The Role of Transboundary River Agreements as a Confidence Building Measure (CBM) in South Asia” (2003) 28 Yale J Int’l L 465 (QL). The Bay of Bengal Large Marine Ecosystem Project, online: boblme ; see also Philomène Verlaan, “Current Legal Developments: Bay of Bengal” (2006) 21 Int’l J Mar & Coast L 111.

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as the implementing agency. Beginning from 2014, the parties have decided to operationalize a Strategic Action Programme for the Bay of Bengal to help them to collectively address the ecology and resources protection problems of the Bay.91 The BOBLME is supplemented by, for instance, the Mangroves for the Future initiative, which is co-chaired by the International Union for the Conservation of Nature and the UNDP. This programme has Bangladesh, India, Indonesia, Maldives, Pakistan, Seychelles, Sri Lanka, Thailand and Vietnam as member countries.92 Then there is a proposal to set up an IndoBangla Sundarbans Ecological Forum to jointly manage programs to protect the Sundarbans mangrove forest.93 When these initiatives are brought under a convention-based regional regime, it can rationalize and spur ICZM activities with the potential to achieve long-term beneficial outcomes. 8.2.3 Transboundary Disputes as Obstacles to Regime Building Common historical and cultural ties that date back thousands of years join the coastal countries of South Asia. Following de-colonization in South Asia, the exodus of refugees from both sides of the Indo-Pakistan border, protracted disputes over the future of Kashmir,94 the strident stance adopted by the countries of the region over common problems, and the four wars fought between the two nuclear powers, India and Pakistan, have left seemingly indelible scars that continue to stall regional cooperation. For instance, intractable disputes over the un-delimited maritime boundaries between India and Pakistan in relation to Sir Creek persist.95 With the recent award of the Permanent Court of Arbitration, the maritime boundary disputes between India and Bangladesh seems to be resolved.96 The possible presence of substantial hydrocarbon 91 92 93 94

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See also The Bay of Bengal Large Marine Ecosystem Project: The Next Steps, Brochure [nd], online: boblme . For more details, see Mangroves for the Future: Investing in Coastal Ecosystems, online: Mangroves for the Future . Asia-Pacific Human Development Report: One Planet to Share: Sustaining Human Progress in a Changing Climate (New Delhi: Routledge, 2012) at 109. Kashmir has been referred to as the most dangerous place on earth. See The Carter Center, The Kashmiri Conflict: Historical and Prospective Intervention Analyses: November 19–21, 2002, Special Conflict Report (Atlanta: The Carter Center, 2003) at 2 (foreword by Jimmy Carter). The maritime dispute between India and Pakistan centers on Sir Creek, a 60-mile-long fluctuating tidal channel or estuary in the marshes of the Rann of Kutch. See Tony George Puthucherril, “India’s Ocean Policy” in Biliana Cicin-Sain, David VanderZwaag & Miriam C. Balgos, eds, Routledge Handbook of National and Regional Ocean Policies (np: Routledge, 2015) [Puthucherril, “India’s Ocean Policy”]. R.C. Sharma & P.C. Sinha, India’s Ocean Policy (New Delhi: Khanna Publishers, 1994) at 113–19; see also Hiran W Jayewardene, The Regime of Islands in International Law, Shigeru

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deposits in the offshore areas furthers the antagonism. As well, controversy persists regarding determination of the outer limits of the extended continental shelf, primarily in the Bay of Bengal region.97 All these disputes

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Oda, ed., 15 Publications on Ocean Development (The Netherlands: Martinus Nijhoff Publishers, 1990) at 193; “Disputed Bay of Bengal island ‘vanishes’ say scientists”, BBC News (24 March 2010), online: BBC News ; Puthucherril, “India’s Ocean Policy”, ibid.; see also Kisei Tanaka, “Indo-Bangladesh Maritime Border Dispute: Conflicts Over a Disappeared Island ICE Case Studies”, No. 270 (December 2011), online: American University ; see generally In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (2014), (Court of Arbitration), (Arbitrators: Rüdiger Wolfrum, Jean-Pierre Cot, Thomas A. Mensah, Pemmaraju Sreenivasa Rao, Ivan Shearer) [Bangladesh v India] (determining the location of the land boundary terminus between Bangladesh and India, and the course of the maritime boundary in the territorial sea, in the EEZ and in the continental shelf within and beyond 200 nautical miles). Bangladesh v India, ibid. (utilizing the equidistance/relevant circumstances method to delimit the continental shelf (adjusted subsequently, due to the concavity of the Bangladeshi coast) both within and beyond 200 nautical miles between India and Bangladesh). As far as determination of the outer limits is concerned, the LOSC provides scientific and technical criteria (articles 76–85 and Annex II (Statement of Understanding Concerning a Specific Method to be Used in Establishing the Outer Edge of the Continental Margin)) regarding delineation of the outer limits of the continental shelf beyond 200 nautical miles from the baselines of a coastal state. The Statement addresses special geographic circumstances in determining the outer edge of the continental margin in the Southern part of the Bay of Bengal. See “Final Act of the Third United Nations Conference on the Law of the Sea: Annex II: Statement of Understanding Concerning a Specific Method to be Used in Establishing the Outer Edge of the Continental Margin” in UNCLOS, Commission on the Limits of the Continental Shelf, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf CLCS/11/Add. 1 (3 September 1999). India has made a submission under article 76 (8) to the Commission on the Limits of the Continental Shelf regarding the establishment of the outer limits of its continental shelf that lie beyond the 200 nautical miles in three regions. See generally India, “The Indian Continental Shelf: Partial Submission to the Commission on the Limits of the Continental Shelf, Pursuant to Article 76, Paragraph 8 of the United Nations Convention on the Law of the Sea: Part I Executive Summary” (np, 2009). The Union of Myanmar, Bangladesh and the Sultanate of Oman have objected to this. For the respective submissions, see Oceans & Law of the Sea United Nations, Commission on the Limits of the Continental Shelf (CLCS) Outer Limits of the Continental Shelf Beyond 200 Nautical Miles from the Baselines: Submissions to the Commission: Submission by the Republic of India, online: Oceans & Law of the Sea United Nations, Commission on the Limits of the Continental Shelf, Submissions and Recommendations, India ; Oceans & Law of the Sea United Nations, Permanent Mission of Bangladesh to the United Nations, No PMBNY-UNCLOS/2009, ¶2.c, online: Oceans & Law of the Sea United Nations, Commission on the Limits of the Continental Shelf,

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have impeded the progress of regional cooperation in ocean and coastal management. Similarly, the construction of the Sethusamudram link canal,98 the commissioning of the Koodankulam nuclear reactor in India,99 and the recent rise of opposition in the state of Tamil Nadu in India, to the settlement over the Katchatheevu isle in the Palk Strait between India and Sri Lanka in 1974 as a unilateral act of cession by India (ignoring the interests of Tamil Nadu), have the potential to upset India-Sri Lanka relations.100 Additional impediments to cooperation include the diversion of the waters of the River Ganges by India via the Farakka Barrage;101 the inability to conclude the Tessta watersharing agreement between India and Bangladesh;102 and the transfer of the Submissions and Recommendations, India, Bangladesh . 98 At present, India does not have a continuous navigation channel connecting its east and west coasts. The Sethusamudram Ship Channel Project (Sethu Canal) proposes dredging a channel through the shallows between India and Sri Lanka. The Sethu Canal runs close to the Mannar Marine Biosphere Reserve. See generally Tony George Puthucherril, “Ballast Waters and Aquatic Invasive Species: A Model for India” (2008) 19 Colo J Int’l Envtl L & Pol’y 381 (QL); O Fernandes v Tamil Nadu Pollution Control Board (17 December 2004), WP No. 33528 (Madras HC). 99 PTI, “Sri Lankan group alleges radiation leaks at Kudankulam N-plant”, The Indian Express (2 March 2013), online: The Indian Express ; Press Trust of India, “Lanka to complain to international watchdog about India’s nuclear plants” NDTV [of India] (9 April 2012), online: NDTV . 100 C. Raja, “Island Lost”, The New Indian Express (10 September 2013), online: The New Indian Express ; see also Agreement between Sri Lanka and India on the Boundary in Historic Waters between the Two Countries and Related Matters, 26 & 28 June 1974, (entry into force 10 July 1974) arts. 4–6. 101 Bangladesh and India share nearly 54 rivers, but they have only one treaty which concerns sharing the Ganges. See Salman M.A. Salman & Kishor Uprety, Conflict and Cooperation on South Asia’s International Rivers: A Legal Perspective, Rudolf V. Van Puymbroeck, ed., Law, Justice and Development Series (Washington, DC: World Bank, 2003) at 135. The Farakka barrage remains a bone of contention between India and Bangladesh, as Bangladesh believes that it is this water diversion that reduces freshwater flow in the dry season, increasing salinity. Bangladesh, Ministry of Environment & Forest, Initial National Communication under the United Nations Framework Convention on Climate Change (UNFCCC) (Dhaka: Ministry of Environment & Forest, 2002) at 30. There have been proposals to conclude another water sharing treaty in relation to the River Teesta between India and Bangladesh. However, these remain in limbo. See PTI, “Bangladesh hopeful of Teesta water-sharing treaty” The Hindu [of India] (29 September 2012), online: The Hindu . 102 Md Nurul Islam, Md Ashfaque Azam & Q.R. Islam, “Teesta River Water Sharing: A Case Study in Teesta Barrage Project” online: WaterTech .

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waters of the Kishenganga River by India for a hydro-electric project threatens conflict with Pakistan which claims the right to more water than it gets.103 There is also India’s proposal to interlink some of its major rivers to meet its ever-growing water needs.104 If carried out, it will considerably reshape the way in which regional cooperation will evolve in South Asia, and how lower riparians may be able to adapt to a rising sea. Political instability in the majority of the South Asia coastal countries also casts shadows over the development of regional cooperative regimes. Apart from India, democracy and democratic institutions are yet to mature in the other coastal countries. In recent years, the rise of extremism and terrorism has produced growing instability in the region. There is also an increasing tendency to hold India responsible for the ills that plague the countries in this region.105 8.3

Approaches to Legislating ICZM: Lessons from Other Regions

The problems that affect the coastal and marine space are primarily nationand region-specific. Though many of the issues are common, like marine pollution, introduction of invasives, and SLR, there are differences in terms of the degree of impact and the level of preparedness among states to respond. 103 It calls upon India to “let flow all the waters of the Western rivers and not permit any interference with those waters.” Indus Waters Treaty, 1960, Pakistan and India, 19 September 1960, (1961) 55:3 AJIL 797 (ratifications exchanged 12 January 1961), art. III(2). In a Partial Award, the Court of Arbitration unanimously decided that while India could divert water for the Kishenganga Hydro-Electric Project, India is under an obligation to maintain a minimum flow of water in the Kishenganga/Neelum River. In The Matter of the Indus Waters Kishenganga Arbitration (Pakistan v India) (2013), (Court of Arbitration), (Arbitrators: Stephen M Schwebel, Franklin Berman KCMG QC, Howard S Wheater Freng, Lucius Caflisch, Jan Paulsson, Bruno Simma, Peter Tomka) at 201. 104 The inter-linking of rivers project envisages the transfer of water from surplus basins or sub-basins to water-deficient areas. Even though the genesis of this project is traceable to the British rule, it was in 1994, when the Supreme Court of India directed the constitution of a high-powered task force to complete the entire interlinking work by 2016 that the project received a new lease of life. However, there was no progress on the matter and accordingly, the Court was forced to issue a mandamus directing the Union of India to constitute a “Special Committee for Inter-linking of Rivers.” In Re Networking of Rivers (27 February 2012), WP Civil No. 512 of 2002 (India SC), ¶59, online: Indian Kannon . 105 Ashok Swain, “South Asia Its Environment and Regional Institutions” in Lorraine Elliott & Shaun Breslin, eds, Comparative Environmental Regionalism (Oxon: Routledge, 2011) 76 at 87 (many countries in this region consider India to be a “regional bully”).

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Consequently, it is difficult for nations to agree on a common global format for ICZM suitable for all socio-ecological, economic and legal contexts. Indeed, an international treaty on ICZM may be couched in broad, general terms, while a soft-law instrument prescribing an ICZM template will not mandate implementation requirements that are binding on any state. In this context, a regional instrument on ICZM (binding or otherwise) can make it possible for neighboring coastal states to take specific actions to protect shared coastal and marine environments and resources in light of their ecological, developmental and other regional characteristics. Such an instrument can also demand information exchange and resource pooling to respond to particular regional problems.106 The Mediterranean ICZM Protocol is the “first supra-State legal instrument”107 on ICZM. The EU has also made rapid strides to implement ICZM at the regional level, and eastern African coastal states are developing a binding protocol on ICZM, as is the case in the Baltic and the Black sea regions.108 This section examines the regional ICZM legislation of the Mediterranean Regional Seas Programme and the EU initiatives as to their merits and what lessons they may offer for South Asia. 8.3.1 The Mediterranean Protocol on Integrated Coastal Zone Management Enclosed by the continents of Africa, Europe and Asia, 21 countries apportion the Mediterranean coastline,109 which is about 46,000 kilometers long.110 The basin has supported great civilizations and even today the sea and its coasts form the “lifeblood of the region.”111 The lists of problems that plague its coastal 106 Raphaël Billé & Julien Rochette, Feasibility Assessment of an ICZM Protocol to the Nairobi Convention to the Parties of the Nairobi Convention (IDDRI, 2010) at 7. 107 Julien Rochette & Raphaël Billé, Analysis of the Mediterranean ICZM Protocol: At the Crossroads Between the Rationality of Provisions and the Logic of Negotiations (IDDRI, 2010) at 4, online: CIRCLE-MED [Rochette & Billé, Analysis of the Mediterranean ICZM Protocol]. 108 See generally Billé & Rochette, supra note 106; see Helsinki Commission, Helcom Recommendation 24/10: Implementation of Integrated Marine and Coastal Management of Human activities in the Baltic Sea Area, 25 June 2003, online: Helsinki Commission, Recommendations, Valid Recommendations ; see also BSC, Strategic Action Plan for the Environmental Protection and Rehabilitation of the Black Sea, 17 April 2009, online: The Commission on the Protection of the Black Sea Against Pollution: Permanent Secretariat, Official Documents, Legal Documents . 109 UNEP/MAP, State of the Mediterranean Marine and Coastal Environment (Athens: 2012) at 9. 110 Ibid. at 39. 111 Ibid. at 17.

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and marine health are the same as elsewhere: large concentration of populations, loss of marine habitats, marine pollution, unsustainable fisheries, invasive species, and climate change.112 Sixteen Mediterranean states and the European Community adopted the Mediterranean Regional Seas Programme in 1975. It was based on an Action Plan that originally targeted marine pollution prevention and was intended to assist national governments to formulate and implement anti-pollution policies. In 1976, the parties adopted the legally-binding Barcelona Convention,113 which was amended in 1995 to align it with, inter alia, the Rio Declaration and Agenda 21,114 and significantly, a broader commitment to integrated coastal planning and management.115 In 1995, the Action Plan for the Protection of the Marine Environment and the Sustainable Development of the Coastal Areas of the Mediterranean (MAP Phase II) was adopted to replace the Mediterranean Action Plan of 1975.116 Seven protocols to the convention have been adopted, including on ICZM.117 The protocol can be traced to article 4.3(e) of the Barcelona Convention, 112 Ibid. at 26, 56 & 62. 113 Convention for the Protection of the Mediterranean Sea against Pollution, 16 February 1976, 15 ILM 290 (entered into force 12 February 1978, revised in Barcelona, Spain, on 10 June 1995 as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, entered into force on 9 July 2004), pmbl. 114 In particular, the amendment in its preamble refers to the UNCED, 1992 and the LOSC 1982. For the full text of the amended Barcelona Convention, see Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, online: European Environment Agency [Amended Barcelona Convention]. 115 This is evident from the title, which now refers to “protection of the marine environment and the coastal region of the Mediterranean.” Ibid. 116 “Action Plan for the Protection of the Marine Environment and the Sustainable Development of the Coastal Areas of the Mediterranean (MAP Phase II)” in UNEP & MAP, Mediterranean Action Plan and Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols, (Informal Document) Revised (Athens: UNEP, 1997) 1 at 1–31 [“Action Plan MAP Phase II”]. 117 Protocol on integrated coastal zone management, 2008; Protocol for the prevention and elimination of pollution of the Mediterranean sea by dumping from ships and aircraft or incineration at sea, 1995; Protocol concerning cooperation in preventing pollution from ships and, in cases of emergency, combating pollution of the Mediterranean sea, 2002; Protocol for the protection of the Mediterranean sea against pollution from land-based sources and activities, 1996; Protocol concerning specially protected areas and biological diversity in the Mediterranean, 1995; Protocol for the protection of the Mediterranean sea against pollution resulting from exploration and exploitation of the continental shelf and the seabed and its subsoil, 1994; Protocol on the prevention of pollution of the Mediterranean sea by

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which calls on contracting parties “to promote the integrated management of the coastal zones, taking into account the protection of areas of ecological and landscape interest and the rational use of natural resources.”118 Subsequently, MAP Phase II identified “integrated coastal area management” as “the standard approach for tackling the problems affecting Mediterranean coastal areas.”119 To this end, national and sub-national legislation must be enacted and institutional capacities created or strengthened. The ICZM protocol was negotiated and refined over six years, and was signed on 21 January 2008,120 as the Madrid Protocol on Integrated Coastal Zone Management (Madrid Protocol). It entered into force in March 2011. To date, it is the only legal instrument at the international level that provides a binding normative foundation for ICZM development.121 An Action Plan for the Implementation of the ICZM Protocol for the Mediterranean 2012–2019 has been developed to strengthen the capacity of contracting parties to implement the Madrid Protocol and promote ICZM at the regional and global levels.122 The Madrid Protocol imposes binding obligations on signatory states to operationalize ICZM at a regional level and to strengthen regional cooperation in this regard.123 It recognizes that as an “irreplaceable ecological, economic and social resource” that face increasing anthropogenic pressures and climate change risks, coastal zones and fragile coastal ecosystems must be managed on the basis of an integrated approach at the level of the Mediterranean basin.124 The intention is to halt and reverse degradation trends and to reduce biodiversity loss so as to ensure preservation of coastal resources and their sustainable

118 119 120 121

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transboundary movements of hazardous wastes and their disposal, 1996. For more details and the texts of these instruments, see UNEP, Mediterranean Action Plan for the Barcelona Convention, online: UNEPMAP, About MAP, Protocols . Amended Barcelona Convention, supra note 114. “Action Plan MAP Phase II”, supra note 116, ¶¶1.4–1.5. Rochette & Billé, “ICZM Protocols”, supra note 10 at 978–79. For more details, see Protocol on Integrated Coastal Zone Management in the Mediterranean: Ratification Score, online: Priority Actions Programme, ICZM Protocol, Ratification Score . See generally Priority Actions Programme, Action Plan for the Implementation of the ICZM Protocol for the Mediterranean 2012–2019, PAP/NFP/2011/2, Draft (2011) at 9 [Action Plan for ICZM Protocol]. United Nations Conference on Environment and Development: Framework Convention on Climate Change, 19 June 1993, 31 ILM 849 (adopted at New York 9 May 1992), art. 4(1)(e); see also Protocol on Integrated Coastal Zone Management in the Mediterranean, [2009] OJ L 34/19, art. 1 [ICZM Protocol]. ICZM Protocol, ibid., pmbl.

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development.125 The Madrid Protocol recognizes spatial integration by providing that the seaward limit of the coastal zone must be set at the external limit of the territorial waters,126 while determination of the landward limit is left to the individual parties concerned.127 Broadly, the Madrid Protocol deals with: 1) sustainable coastal management; 2) strengthening coastal governance; and 3) facilitating a regional approach. These subjects are analyzed next. 8.3.1.1 Sustainable Coastal Management The exceptional biodiversity and ecosystem services of the coastal regions of the Mediterranean are threatened by socio-economic development. Accordingly, the Madrid Protocol seeks to protect specific coastal ecosystems, promote sustainable coastal resource use, and manage economic activities and risks in the coastal zone. Mediterranean coastal zones are “the common natural and cultural heritage” of the people and, thus, must be preserved and used “judiciously for the benefit of present and future generations.”128 Consequently, the Protocol calls for the protection of coastal ecosystems like wetlands and estuaries,129 marine species and habitats,130 coastal forests,131 dunes,132 coastal landscapes,133 islands,134 and cultural heritage including underwater cultural heritage.135 The Madrid Protocol also identifies implementation instruments and tools, like environmental impact assessment,136 land policy including planning,137 economic, financial and fiscal measures,138 codes of good practice,139 and carrying capacity of ecosystems.140 Furthermore, it asks parties to “strengthen or formulate” national ICZM strategies141 and coastal 125 Ibid. 126 Ibid., art. 3(1)(a). 127 Ibid., art. 3(1)(b). 128 Ibid., pmbl. 129 Ibid., art. 10(1). 130 Ibid., art. 10(2)(a). 131 Ibid., art. 10(3). 132 Ibid., art. 10(4). 133 Ibid., arts. 2(f), 5(d), 8(1) & 11(1). 134 Ibid., art. 12. 135 Ibid., art. 13. 136 Ibid., art. 19(2). 137 Ibid., art. 20(1)–(2). 138 Ibid., art. 21. 139 Ibid., art. 9(1)(e). 140 Ibid., arts. 6(b), 9(1)(e) & 19(3). 141 Ibid., arts. 18(2), 10(1)(a), 12(b) & 22.

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implementation plans and programs to utilize tools for coastal management.142 These plans must be consistent with the ICZM objectives and principles identified in the Madrid Protocol and the common regional framework for ICZM in the Mediterranean.143 The Protocol also secures the freedom of access to the sea and the shore.144 A striking feature of the Madrid Protocol is that it takes account of the impacts of SLR. Its objectives include having to “prevent and/or reduce the effects of natural hazards and in particular of climate change.”145 Accordingly, there are provisions relating to risk management146 that are pertinent to SLR and CCCA. In their national ICZM strategies, parties must carry out “vulnerability and hazard assessments of coastal zones and take prevention, mitigation and adaptation measures to address the effects of natural disasters, in particular of climate change.”147 As well, they must “anticipate the impacts of coastal erosion through the integrated management of activities, including adoption of special measures for coastal sediments and coastal works.”148 These provisions clearly view ICZM as instrumental to fostering CCCA. Thus, to prevent and mitigate the negative impacts of coastal erosion, parties must adopt “necessary measures to maintain or restore the natural capacity of the coast to adapt to changes, including those caused by the rise in sea levels.”149 They must minimize any negative impacts of such measures, such as adjacent coastal damage due to hard armouring.150 Parties are also to share scientific data on the “state, development and impacts of coastal erosion.”151 The Madrid Protocol also calls for planned retreat by providing for setback lines and for the designation of no-construction zones.152 It intimates that its stipulations on coastal protection and management are only baseline standards and do not displace stricter ones that can be adopted under national or international instruments or programs.153 Clearly, all these provisions see ICZM as instrumental to fostering CCCA.

142 143 144 145 146 147 148 149 150 151 152 153

Ibid., arts. 18(1) & (3). Ibid., arts. 17 & 18(1). Ibid., art. 8(3)(d). Ibid., art. 5(e). Ibid., part. IV. Ibid., art. 22. Ibid., art. 23(3). Ibid., art. 23(1). Ibid., art. 23(2). Ibid., art. 23(4). Ibid., art. 8(2). Ibid., art. 4(3).

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8.3.1.2 Strengthening Coastal Governance Coastal governance measures in the Madrid Protocol include integration, ensuring the flow of information, and promoting public and stakeholder participation in decision-making.154 It recognizes the most important dimension of ICZM, namely, spatial integration.155 In addition, the inter-sectoral,156 institutional,157 inter-disciplinary,158 and international159 facets of ICZM are also acknowledged. Recognizing that a condition precedent for meaningful public participation is access to information, the Madrid Protocol calls on parties to promote interdisciplinary scientific research on ICZM, to further knowledge and to contribute to public information.160 The public is to be informed of the geographic scope of the protocol161 and they are to be provided “access to the information derived from monitoring and observation mechanisms and networks.”162 Parties are to carry out awareness-raising activities and develop educational programs and training on ICZM at the national, regional and local levels.163 Public participation can, inter alia, take the form of consultations, inquiries, public hearings and partnerships.164 Notably, participation is contemplated throughout the ICZM process.165 Since the Madrid Protocol confers rights in line with the ubi jus ibi remedium principle (where there is a right, there ought to be a remedy), stakeholders are empowered to challenge decisions, acts or omissions through mediation or conciliation, or through the administrative and legal processes.166 8.3.1.3 Facilitating a Regional Approach In concert with the Barcelona Convention, the Madrid Protocol recognizes that inter-state cooperation is the cornerstone of regionalism and provides that the “[p]arties shall establish a common framework for the integrated management 154 Rochette & Billé, Analysis of the Mediterranean ICZM Protocol, supra note 107 at 18. 155 ICZM Protocol, supra note 123, art. 6(a). 156 Ibid., arts. 5(f) & 7(2). 157 Ibid., art. 7(1)(a)–(b). 158 Ibid., art. 15(3). 159 Ibid., art. 28. 160 Ibid., art. 15(3). 161 Ibid., art. 3(3). 162 Ibid., art. 16(4). 163 Ibid., art. 15(1)–(2). 164 Ibid., art. 14(1). 165 Ibid. 166 Ibid., art. 14(3).

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of the Mediterranean coastal zone and shall take the necessary measures to strengthen regional co-operation.”167 These measures include information exchange,168 training and research,169 and scientific and technical assistance.170 The protocol emphasizes regional and international cooperation in responding to natural disasters,171 protecting transboundary coastal landscapes,172 implementing common programs on marine habitat protection,173 and ICZM education.174 The Madrid Protocol also sets out rules for transboundary environmental assessments,175 national strategies, plans and programs in contiguous coastal zones,176 and development and implementation of a common regional ICZM framework.177 Parties are also called on to participate in the Mediterranean coastal zone network.178 8.3.1.4 Discussion So far, the Madrid Protocol is the most important legal instrument that mandates binding regional level coastal zone management integration. It promotes collaboration and coordination, economic development, and CCCA to achieve SCD. In this sense, it is a helpful example for regions seeking to develop similar legal instruments on ICZM. Since the European Commission’s (Commission) ratification of this instrument in 2010,179 its relevance has been considerably enhanced. The Protocol’s provisions broaden the scope of ICZM by mandating the protection of coastal landscapes. By demanding attention to inter-generational equity issues, it emphasizes the need for long-term utilization of coastal resources. Its provisions engage obligations under the World Heritage 167 168 169 170 171 172 173 174 175 176 177 178 179

Ibid., art. 1. Ibid., arts. 23–24 & 27. Ibid., art. 25. Ibid., art. 26. Ibid., art. 24. Ibid., art. 11(2). Ibid., art. 10(2)(b). Ibid., art. 15(2). Ibid., art. 29. Ibid., art. 28. Ibid., art. 17. Ibid., art. 16(2). See generally Council Decision of 13 September 2010 concerning the conclusion, on behalf of the European Union, of the Protocol on Integrated Coastal Zone Management in the Mediterranean to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (2010/631/EU), [2010] OJ, L 279/1.

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Convention, the Ramsar Conservation, and other international environmental law instruments into the coastal management effort. Island management, which is particularly relevant in the Mediterranean Sea, is mandated along with the protection of coastal wetlands, estuaries, marine habitats, coastal forests and other ecosystems. And the Protocol’s strategy of linking climate change related processes with risk management in the coastal zone is a practical response to SLR. The Madrid Protocol encourages on-going work to harmonize national legal and institutional frameworks with its tenets.180 Thus far, however, ICZM in the Mediterranean region remains “localised and relatively short-term and project based.”181 As well, “there are only a few isolated examples of specific legislation or established institutional frameworks in place for either the implementation of ICZM or the Protocol itself.”182 Nevertheless, the presence of the Protocol will facilitate the development of its mandates so that ICZM implementation can progress in the region. The slow pace of this progress only highlights the practical difficulties that confront nations in this effort, and this points to how seriously the exercise must be taken in all regions. 8.3.2 The European Union The diverse coastal frontages of the EU stretch to 185,000 kilometers,183 and are vital to the European economy.184 It is estimated that close to 200 million people live in the coastal region with nearly 90 per cent situated within

180 For more details, see Regional MedPartnership Workshop on Harmonizing the National Legal and Institutional Framework with the ICZM Protocol, online: Priority Actions Programme . For an understanding on how the Croatian legal system complies with the provisions of the Protocol, see generally Julien Rochette & Guillaume Du Puy-Montbrun, Analysis of the Croatian Legal Framework in Relation to the Provisions of the Protocol on ICZM in the Mediterranean ([np]: PAM, 2012). 181 Action Plan for ICZM Protocol, supra note 122 at 9. 182 Ibid. at 10. 183 European Environment Agency, 10 Messages for 2010 Coastal Ecosystems (Copenhagen: European Environment Agency, 2010) at 2 [EEA, 10 Messages]. 184 The economic value of assets that lie within 500 meters of Europe’s seas is somewhere between €500–€1,000 billion. EC, The Challenge of Climate Change to the European Coastal Areas: State of Coasts in the Context of the Global Climate Change, online: European Commission, Environment, ICZM, State Coast .

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50 kilometers of the coast.185 Degradation of coastal zones,186 the effects of climate change, SLR, coastal erosion and flooding, decline in fisheries and related avocations,187 population growth, and the pressures of economic development188 are all affecting the “environmental and social equilibria” of Europe’s coastal zones.189 The EU has adopted several cross-border actions to stem the tide of coastal degradation. Beginning with the Protection of the Coastline Resolution of 1973, a series of documents, like the Model Law on Coastal Protection, the Code of Conduct for Coastal Zones, and the European Coastal Charter were approved.190 The 1992 Earth Summit popularized ICZM in Europe. In that year, and in 1994, resolutions acknowledging the importance of an integrated approach in coastal areas were adopted.191 Thereafter, a demonstration program on Integrated Coastal Zone Management (1996–1999), which involved 35 projects, was implemented.192 Its findings spurred the European Parliament and Council to adopt the Recommendation on Integrated Coastal Zone Management in 2002.193 185 See generally EC, Directorate-General Envt, Consultation Document: Hearing on Integrated Coastal Zone Management (Brussels, 30 May 2011) [EC, Consultation Document]. 186 Nearly 70 per cent of Europe’s coastline stands highly threatened. Peter Burbridge & Sarah Humphrey, “Introduction to Special Issue on the European Demonstration Programme on Integrated Coastal Zone Management” (2003) 31 Coastal Mgmt 121. 187 EEA, 10 Messages, supra note 183 at 7. 188 Ibid. at 7 & 9. 189 EC, Recommendation of the European Parliament and of the Council of 30 May 2002 Concerning the Implementation of Integrated Coastal Zone Management in Europe, (2002/413/EC) [2002] OJ L 148/24, pmbl [EC, ICZM Recommendation]. 190 For the text, see Committee Responsible for the Activities of the Council of Europe in the Field of Biological and Landscape Diversity, Model Law on Sustainable Management of Coastal Zones and European Code of Conduct for Coastal Zones, Nature and Environment Series, (np: Council of Europe Publishing, 2000); EC, EU Policy on Integrated Coastal Management, The History of EU Integrated Coastal Management Policy, EC . 191 See generally EC, Council Resolution of 25 February 1992 on the Future Community Policy Concerning the European Coastal Zone, [1992] OJ, C 59/1; see generally EC, Council Resolution of 6 May 1994 on a Community Strategy for Integrated Coastal-Zone Management, [1994] OJ, C 135/2. 192 For more details on the project, see EC, Coastal Zone Policy: I.C.Z.M. Demonstration Projects, online: EC, Environment ; see also Stefano Belfiore, “Recent Developments in Coastal Management in the European Union” (2000) 43 Ocean & Coast Mgmt 123 (ScienceDirect). 193 See generally EC, ICZM Recommendation, supra note 189.

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8.3.2.1

The EU Recommendation on Integrated Coastal Zone Management The Recommendation identifies three core principles for sound coastal planning: 1) a broad framework for ICZM development; 2) development of national strategies; and 3) reporting and review requirements. The Recommendation highlights the need for a strategic approach to coastal management194 and sets out eight ICZM principles for effective coastal management.195 Parties will use these principles to develop their national strategies. As a first step, member states must take stock to identify the primary actors, laws and institutions that influence coastal management.196 They must then develop one or more national strategies to implement ICZM,197 and coordination with neighboring countries is emphasized.198 Member States are to report to the Commission on their experience in implementing the recommendation within 45 months of adoption.199 Thereafter, the Commission will review the Recommendation (within 55 months) and submit an evaluation report, accompanied by proposals for any required changes to the European Parliament and Council.200 The first stocktaking in 2007 pointed out that while the Recommendation considerably influenced the implementation of ICZM, and that several countries had developed national strategies, the process was moving at a snail’s pace. More importantly, it was found that, even though “coastal EU Member States regulate[d] coastal use and development in some form . . . a mature and well-functioning ICZM involving all relevant levels of governance is still rarely observed.”201 In fact, most of the national strategies were developed primarily in 2006, and their implementation had begun just prior to the stocktake.202 The Commission concluded that greater promotion of ICZM was needed, but that no further legislation was required.203 It confirmed the validity of ICZM principles and concluded that implementation should progress on the basis of the Recommendation. 194 Ibid., ch. I. 195 Ibid., ch. II. 196 Ibid., ch. III. 197 Ibid., ch. IV. 198 Ibid., ch. V. 199 Ibid., ch. VI(1). 200 Ibid., ch. VI(3). 201 EC, Communication From the Commission: Report to the European Parliament and the Council: An Evaluation of Integrated Coastal Zone Management (ICZM) in Europe, COM(2007) 308 Final, (Brussels, 2007) at 4. 202 Ibid. at 5. 203 Ibid.

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Other EU instruments that impinge coastal management, include the Water Framework Directive, 2000;204 the Habitats and Bird Directives, 1992; the Action Plan “Halting Biodiversity Loss by 2010—and Beyond”; the Strategic Environmental Assessment Directive, 2001; and the White Paper on Adaptation to Climate Change.205 As noted earlier, the EU ratified the Mediterranean ICZM protocol,206 “a strong signal of [its] commitment to the protection and sustainable management of the Mediterranean coast.”207 The Integrated Maritime Policy208 and the Marine Strategy Framework Directive209 include ICZM as part of a broader integrated maritime management and are aimed at improving marine environment quality by 2020. Such an approach will protect the resource base of marine-related economic and social activities.210 204 See generally EC, Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 Establishing a Framework for Community Action in the Field of Water Policy, [2000] OJ, L 327/1 (emphasizing the need for a greater integration of qualitative and quantitative aspects of both surface waters and ground waters). 205 EC, Adapting to Climate Change: Towards a European Framework for Action, White Paper, COM(2009) 147 Final (Brussels, 2009) at 12 (need to respect and strengthen the ICZM recommendation). 206 See generally EC, Council Decision of 4 December 2008 on the Signing, on Behalf of the European Community, of the Protocol on Integrated Coastal Zone Management in the Mediterranean to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (2009/89/EC), [2009] OJ, L 34/17. 207 See generally EC, Press Release, “Statement by European Environment Commissioner Janez Potočnik Following the Adoption of the Council Decision to Ratify the Protocol on Integrated Coastal Zone Management in the Mediterranean” (Brussels: MEMO/10/406, 13 September 2010), online: European Commission, Press Releases Rapid . 208 For more details, see generally EC, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: An Integrated Maritime Policy for the European Union, COM(2007) 575 Final, (Brussels, 2007). 209 See EC, Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 Establishing a Framework for Community Action in the Field of Marine Environmental Policy (Marine Strategy Framework Directive), [2008] OJ, L 164/19. 210 The Marine Strategy Framework Directive establishes European marine regions on the basis of geographical and environmental criteria. Member states (in cooperation with other member states and non-EU countries within a marine region) are required to develop strategies for their marine waters. The first elements of marine strategies are due by 2012 and are required to be updated every six years. The Marine Strategy Framework Directive can facilitate adaptation by ensuring that climate change considerations are incorporated into the marine strategies and by providing a mechanism for regular updating to take account of new information. The objective to achieve ‘good environmental status’ will help to develop actions to prevent deterioration in the quality of the marine

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Following the second stocktaking in 2010, the Commission proposed a followup to review the EU ICZM Recommendation and possibly even propose a new one.211 8.3.2.2 Linking Marine Spatial Planning with ICZM Maritime spatial planning is: a public process for analysing and planning the spatial and temporal distribution of human activities in sea areas to achieve economic, environmental and social objectives that usually have been specified through a political process. Characteristics of marine spatial planning include ecosystem-based, area-based, integrated, adaptive, strategic and participatory.212 In its quest to develop a “blue economy,”213 and to afford a contemporary direction to coastal zone management, planning and conservation, the EU has, since 2007, shifted focus to marine spatial planning (MSP), with ICZM as part of this broader strategy. In setting out this vision, as prelude, an Integrated Maritime Policy was developed.214 Subsequently, in March 2013, the EU Commission launched a proposal to establish a framework that links MSP with ICZM to enhance the development and sustainability of maritime and coastalbased activities and the use of coastal and marine resources. This proposal is based on the idea that: [m]aritime spatial planning and integrated coastal management are complementary tools. Their geographical scope overlaps in the coastal and territorial waters . . . where maritime spatial plans will map existing human activities and identify their most effective future spatial development, while integrated coastal management strategies ensure the environment due to climate change. The directive also urges the creation of a network of marine protected areas by 2012 and calls for the wide application of an ecosystem-based approach. Ibid. 211 EC, Consultation Document, supra note 185. 212 Why Marine Spatial Planning (MSP), online: Marine Spatial Planning Initiative, Marine Spatial Planning (MSP) . 213 EC, Proposal for a Directive of the European Parliament and of the Council Establishing a Framework for Maritime Spatial Planning and Integrated Coastal Management [2013] 0074 (COD) at 2 [EC, Proposal for a Directive of the European Parliament]. 214 Aldo Chircop & Ryan O’Leary, “Legal Frameworks for Integrated Coastal and Ocean Management in Canada and the European Union: Some Insights from Comparative Analysis” (2012) 13:3 Vt J Envtl L 425 at 442 (HeinOnline).

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integrated management of these human activities. Applied jointly, they both improve sea-land interface planning and management.215 This draft directive applies to “marine waters and coastal zones.”216 It obliges member states to establish and implement MSPs and ICZM strategies217 based on an ecosystem approach.218 The MSPs and ICZM strategies have two broad objectives: secure economic interests219 and protect the coastal and marine environment to “ensur[e] climate resilient coastal and marine areas.”220 Minimum specific requirements221 and common minimum requirements222 include public participation223 and environmental assessments.224 Specifically, ICZM strategies are to provide for mitigation and adaptation to climate change.225 Although, the directive provides for a common format, the intention is not to integrate the tools, but rather to enhance mutual coordination.226 8.3.2.3 Discussion The EU has adopted a soft law approach to ICZM implementation and through a series of progressive steps, it has presently cast a regional regime that has its basis in a recommendation. It must be noted that a recommendation under the EU hierarchy of legal instruments enjoys no force and, therefore, it is nonbinding and primarily advisory.227 Couched in general terms, it offers very little by way of functional guidance and operational specifics. This has proven to be a boon, as it confers considerable discretion on member states to develop their national strategies according to national circumstances. But there has also been considerable foot-dragging by some member states, leading to divergent outcomes. Further, given the limited compass of the national stock-taking 215 EC, Proposal for a Directive of the European Parliament, supra note 213. 216 Ib­id. 217 Ibid. at 7, art. 4. 218 Ibid., art. 5. 219 Ibid., art. 5(a)–(c). 220 Ibid., art. 5(d)–(e). 221 Ibid., arts. 7, 8 & 8(f). 222 Ibid., art. 6. 223 Ibid., art. 9. 224 Ibid., art. 11. 225 Ibid., art. 8(2)(f). 226 Ibid., art. 6(2)(a). 227 Recommendations and opinions shall have no binding force. See EU, Consolidated Version of the Treaty on the Functioning of the European Union, [2010] C 83/47, art. 288 [EU, Consolidated Version].

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exercise, it is doubtful whether states were able to develop ICZM strategies to reflect development priorities and environmental concerns. Nevertheless, the recommendation has increased awareness about the need to integrate and reorient sectoral approaches to SCD228 and has moved coastal management in Europe beyond a project-by-project approach.229 The second stocktaking reveals a more optimistic picture of future benefits from pursuing the recommendation. If it materializes, the proposal for an MSP directive will offer the EU an important management framework that interlinks ICZM with MSP, thereby recognizing the nested nature of terrestrial and marine ecosystems. This will be revolutionary in the quest to attain SCD. As well, the fledging regional regime (presently supported by the non-binding recommendation) will be revitalized if the MSP directive is implemented, as it has binding legal force. Directives are “binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods.”230 In other words, directives sets targets and it is up to the member states to determine how they will attain them. As well, the proposed directive spells out measures to adapt to SLR. Even though linking ICZM with MSP has merits, it can compound implementation concerns, particularly in federations where exclusive jurisdiction at federal and provincial/state level separates the dry and wet components of the coastal zone. Again, it is possible that in due course, the emphasis can shift to managing the seaward side (in the interests of exploiting minerals like oil and gas), and so there could be less emphasis on the terrestrial components. At least, in the near future, many coastal countries like those in South Asia, may find it difficult to link ICZM with MSP as both tools are insufficiently developed in these countries. It is clear from the Mediterranean and EU experiences with ICZM that a regional approach holds advantages over a global approach. Coastal South Asia (and other coastal regions) can draw lessons from both the EU and Mediterranean on how to operationalize a principled regional approach to coastal management. In fact, both demonstrate that a regional approach makes it possible to respond to specific issues in a focused and holistic manner, taking into account the special needs and circumstances of the region. As well, 228 See generally, EC, Directorate-General: Environment, Report from the Working Group Follow-up to the EU ICZM Recommendation: Version 3, Final, DGENV.D.3 D(09) (Brussels, 2009). 229 Burbridge & Humphrey, supra note 186 at 124. 230 EU, Consolidated Version, supra note 227.

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a regional approach facilitates the implementation of adaptive and ecosystem based management. It can also spur policy and legislative reform at the national level, prompt cooperation and coordination between countries, provide direction to coastal states to internalize appropriate sustainable coastal management practices, enhance capacity to deal with coastal issues, and facilitate CCCA implementation. 8.4

Regime Theory and Prospects for Regional ICZM Regime Building in South Asia

Modern regime building began in wake of the First World War, and received impetus with the creation of the United Nations.231 In the environmental law arena, the Stockholm Conference of 1972 set the stage for the profusion of environmental regimes.232 Basically, regimes provide an atmosphere for collaboration and coordination by establishing the parameters for permissible state behavior. Defined as “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations,”233 regimes help to resolve the problems posed by collective goods, such as a shared ecosystem, where states are goaded to avoid independent decision-making and to avoid “free riders.”234 A more comprehensive definition states that regimes represent “the rules agreed by two or more states, aimed at working collectively on shared problems, even at the short-term risk of suffering relative losses, which are offset by the expectation that all parties will benefit and realize absolute gains.”235 Three different schools—realists, neoliberals, and cognitivists—explain the basic postulates of international regime formation that are germane to the discussion below. 231 Aldo Chircop, Ted L. McDorman & Susan J. Rolston, “Introduction: Setting the Stage” in Aldo Chicop, Ted L. McDorman & Susan J. Rolston, eds, The Future of Ocean RegimeBuilding: Essays in Tribute to Douglas M. Johnston (Leiden: Martinus Nijhoff Publishers, 2009) 25 at 25–27. 232 Ibid. 233 S.D. Krasner, “Regimes and the Limits of Realism: Regimes as Autonomous Variables” in Stephen D. Krasner, ed., International Regimes (London: Cornell University Press, 1983) 356 at 356. 234 Mark J. Valencia, “Regional Maritime Regime Building: Prospects in Northeast and Southeast Asia”(2000) 31 Ocean Devel & Int’l L 223 at 225. 235 Charles W. Kegley, World Politics: Trends and Transformation, 10th ed. (Belmont: Thomson Wadsworth, 2006) at 157.

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Realists concentrate on power relationships. They believe that states predominantly interact in an anarchic environment. The realist perspective on international cooperation is reflected primarily in the power-based “theory of hegemonic stability,” which argues that strong international regimes are established and maintained by actors who hold a preponderance of power resources,236 either economic, military, or both, and use them as a leverage over other states to draw them into the regime.237 In such cases, the hegemon can be benevolent238 or coercive,239 but as and when the strength of the hegemon wanes, correspondingly, the regime also weakens.240 On the other hand, the neoliberalists, or “interest based theories of regimes” argue, that “states are rational egoists who care only for their own (absolute) gains.”241 In other words, states are “self-interested, goal seeking actors,” who want to maximize individual utility.242 Despite mistrust, states cooperate to realize their objectives and the role of regimes is to facilitate and coordinate their behavior to enable them to achieve their desired objectives in particular areas.243 Variations on neoliberalism include the contractualist, situational structuralist, problem structural, and institutional bargaining views, among which institutional bargaining is the most dominant. The cognitivists depart from the foregoing views on regimes. They emphasize that distribution of knowledge constitutes the identities and shapes the preferences and perceived options of states. The cognitivist theory can be sub-classified into weak cognitivism and strong cognitivism.244 Weak cognitivism is based on three primary assumptions, namely, that the knowledge which actors possess strongly influences their behavior and expectations in international relations; that policy makers demand high quality information and expert advice to make intelligent decisions; and that some understanding 236 Andreas Hasenclever, Peter Mayer & Volker Rittberger, Theories of International Regimes, 1st ed. (UK: Cambridge University Press, 1997) at 90.  237 Gareth Porter & J.W. Brown, Global Environmental Politics (Boulder: Colorado Westview Pres Inc 1991) at 19. 238 Under the benevolent leadership model, the hegemon creates and maintains the regime all by himself/herself. Hasenclever, Mayer & Rittberger, supra note 236 at 90–91. 239 In the coercive leadership model, the hegemon uses its superior power to force others to contribute as well. Ibid. at 91. 240 Ibid. at 89. 241 Ibid. at 4. 242 Ibid. at 23. 243 For more details, see ibid. at 23–82 (chapter 3 entitled “Interest-based Theories: Political Market Failure, Situation and Problem Structures, and Institutional Bargaining”). 244 Ibid. at 136.

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of the issue at stake is necessary for expectations to converge, cooperation to take place and for agreement to be forged. Weak cognitivism assigns significant roles to epistemic communities. Haas defines epistemic communities as networks of knowledge-based communities with an authoritative claim to policy-relevant knowledge within their domain of expertise. Their members share knowledge about the causation of social or physical phenomena in an area for which they have a reputation for competence, and a common set of normative beliefs about what actions will benefit human welfare in such a domain.245 Leaders and decision-makers may not be aware of the intricacies of the scientific, social and economic implications of problems that confront the environment and, consequently, to make informed decisions, they depend on experts.246 Given this, “policy debates are . . . informed and bounded by the advice which leaders receive.”247 As international issues become more technical, complex, scientific, inter-disciplinary and uncertain, the works that epistemic communities do “become the basis of new or changed international practices and institutions and the emerging attributes of a new world order.”248 In short, epistemic communities play important roles in regime creation.249 Strong cognitivism espouses the powers of legitimacy, argument, and identity.250 The power of legitimacy implies that states cooperate out of a sense of obligation. In other words, they comply with norms and rules which are perceived as being legitimate, since not to do so will undermine their own existence in international society. As far as the power of argument is concerned, regimes are formed from the practical discourses among states that aim to establish norms of conduct, their interpretation and application in concrete

245 Peter M. Haas, “Epistemic Communities and the Dynamics of International Environmental Co-operation” in Volker Rittberger, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993) 168 at 179. 246 Ibid. 247 Ibid. 248 See generally Emanuel Adler & Peter M. Haas, “Conclusion: Epistemic Communities, World Order, and the Creation of a Reflective Research Program” (1992) 46:1 Int’l Organization 367. 249 Hasenclever, Mayer & Rittberger, supra note 236 at 187–90. 250 Vernese Inniss, The Case for an Alternative Approach to Managing the Atmospheric Commons: Small Island States and the Climate Change Regime (PhD Thesis, University of Delaware, 2003) at 93 [unpublished].

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situations. In essence, regimes are the product of communicative dynamics.251 The power of identity implies that states acquire role-specific understandings and expectations about themselves by socialization into the inter-subjective structures of the international system. The continued socialization of states within the international system leads to a more collective understanding of themselves in relation to other actors in the system. In the process, they become habituated to cooperate and develop collective identities even in face of the dominant strategy of self-interested tendency to defect.252 In line with the foregoing, it is clear that while some regimes emerge spontaneously, not requiring conscious coordination by participants,253 others are the product of negotiations.254 Still others can be imposed—“. . . fostered deliberately by dominant powers or consortia of dominant powers.”255 These developmental sequences are not “mutually exclusive,”256 and “. . . any attempt to classify actual international regimes rigidly in terms of the three developmental sequences is . . . to distort reality and to produce confusion rather than enhance understanding.”257 In sum, the different schools provide theoretical casings to explain determinative factors, namely, power, interest, and knowledge that contribute to regime formation. It must also be pointed out that regime formation is not entirely a state sponsored construct. In addition to epistemic communities, other non-state actors can also play crucial roles in regime formation and development.258 Regimes can also take different shapes and forms; some are formal while others are informal; some are exhortatory, and others impose definite and concrete commitments. Even though not necessarily dependent on treaties, at the heart of all regimes is “a cluster of rights and duties.”259 A related but distinct question is about regime effectiveness given that some are 251 Ibid. at 96. 252 Hasenclever, Mayer & Rittberger, supra note 236 at 190. 253 Oran R. Young, International Cooperation Building Regimes for Natural Resources and the Environment (New York: Cornell University Press, 1989) 81 at 85 (chapter entitled “Regime Dynamics: The Rise and Fall of International Regimes”). 254 Ibid. at 86–87. 255 Ibid. at 88. 256 Ibid. at 90. 257 Ibid. 258 Stephen D. Krasner, “Sovereignty, Regimes, and Human Rights” in Volker Rittberger, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993) 139 at 141. 259 Robert O. Keohane, “The Analysis of International Regimes: Towards a EuropeanAmerican Research Programme” in Volker Rittberger, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993) 23 at 43.

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effective while others are not.260 Generally, regime effectiveness is enhanced when members abide by its terms (regime strength), and “a regime is effective to the extant that it achieves certain objectives or fulfills certain purposes.”261 Similarly, regimes “are maintained as long as the patterns of interest that g[i]ve rise to them remain. When these shift, the character of the regime may change; a regime may even dissolve entirely.”262 Even though criticized for being a “wooly notion” that produces “more confusion than illumination,”263 regimes have been hailed as “[o]ne of the most creative innovations of the international diplomatic community in the 20th century.”264 In terms of applying the precepts of regime dynamics to South Asian ICZM development, four propositions central to the theory, may be highlighted: 1) regimes can help eliminate free riders; 2) epistemic communities promote regime creation and support its sustenance; 3) a hegemon can help establish and maintain the continued existence of an international regime; 4) despite mistrust, states may cooperate to promote their self-interests. As to the first proposition, the elimination of free riders, the idea of the noncooperative prisoners’ dilemma illuminates the need for regional cooperation on ICZM and CCCA in South Asia,265 and the Sundarbans, the transboundary coastal mangrove shared by Bangladesh and India, serves to illustrate it. Several fishing communities on both sides of the border depend on the Sundarbans for their livelihood. Given the degraded state and the ongoing threats that this ecosystem faces from SLR and other climate change impacts, if both countries cooperate to adopt measures to protect it, the net benefits to both will exceed returns in their individual efforts. If they do not cooperate to do this, and suppose that only Bangladesh takes actions to protect its part of the Sundarbans, then, even if India does not make any investment in protecting the ecosystem on its side, given the unique nature of the Sundarbans mangrove, India 260 Saunders, supra note 8 at 10. 261 Hasenclever, Mayer & Rittberger, supra note 236 at 2. 262 Arthur A. Stein, “Coordination and Collaboration: Regimes in an Anarchic World” in Stephen D. Krasner, ed., International Regimes (London: Cornell University Press, 1983) 115 at 137. 263 See generally “Prologue” in Oran R Young, International Cooperation Building Regimes for Natural Resources and the Environment (New York: Cornell University Press, 1989) 9. 264 Douglas M. Johnston, The Historical Foundation of World Order: The Tower and the Arena (Leiden: Nijhoff, 2008) at 730. 265 Game theory concepts are used to enhance understanding of how regimes are maintained. Andrew Kydd & Duncan Snidal, “Progress in Game-Theoretical Analysis of International Regimes” in Volker Rittberger, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993) 112 at 113.

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will still be able to free ride on the payoffs from Bangladesh’s efforts. But for Bangladesh, its single-handed actions will cost it more than its benefits from the investment.266 Accordingly, Bangladesh may decide to hold-off, as a donothing option makes perfect economic sense. Ultimately, both countries may decide not to adopt any measures to protect the Sundarbans, which is definitely not in their best interests. To prevent this outcome, cooperation under a regime, which gives them the opportunity to assume shared duties to manage and conserve the resource, will ensure that each bears an appropriate cost for greater benefits. Even though the SAARC has been around for nearly three decades, it has not promoted and facilitated opportunities, and mutual confidence and trust to enhance commitment to protect the coastal environments.267 It is true that SAARC fostered the establishment of the Regional Coastal Zone Management Centre with its emphasis on capacity building and the creation of epistemic communities. The utility of such communities and their role in regime creation and sustenance is the theory’s second proposition. It is possible that this Centre may, in due course, bring together coastal management experts, lawyers, policy-makers and the scientific community from the South Asian coastal countries, and even beyond, to pool resources and share knowledge to strengthen respective national efforts in coastal management. This will not only popularize ICZM in the respective countries, but also create the atmosphere for an ICZM regime to emerge in the region. Regional cooperation has been hampered in South Asia, on account of India being perceived as the regional hegemon. India’s pre-eminent position in South Asia may be explained by four factors. First is its central geographical location, making it the neighbor of all other coastal states with the longest coastline in this region. Second, India has enjoyed strong economic growth in recent years.268 Third, the country has aspirations to play a leadership role in world affairs and is currently vying for a permanent seat in the UN Security Council.269 Finally, it has a strong military, a navy with blue water capabilities, 266 Michael Finus, Game Theory and International Environmental Cooperation, Wallace E. Oates & Henk Folmer, eds, New Horizons in Environmental Economics (Glos: Edward Elgar Publishing Limited, 2001) at 22. 267 In 1998, it was remarked that the “SAARC has hardly progressed beyond signs and symbols.” This situation continues today. Swain, supra note 105 at 84. 268 Prime Minister, “Statement” (Full Planning Commission Meeting on Twelfth Five Year Plan (2012–17) 15 September 2012), online: Planning Commission . 269 Tony Karon, “India’s Security Council Seat: Don’t Hold Your Breath” Time (10 November 2010), online: Time ; Shashi Tharoor, “Security Council Reform: Past,

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and is a nuclear power.270 While there is general agreement that India has to play a critical leadership role in forging and operationalizing regional cooperation, and in taking forward any regime on ICZM and CCCA management,271 the fact is that India has been unable to rise to these expectations. Rather, India views its neighbors with suspicion and fears that they may forge alliances against its interests. It is also wary of the growing Chinese presence in South Asian waters.272 The other coastal and non-coastal countries in South Asia also resent India’s intransigence to maximize its interests in the disputes they have. A thorny one is India’s refusal to approach transnational water disputes as a matter of integrated river management among all riparians, but seeks bilateral arrangements in which it can have the upper hand with each neighbor.273 As well, India frowns upon third party interventions in these disputes. In this context, it must be noted that the SAARC Charter also emphasizes that decisions must be based on unanimity and excludes bilateral disputes from being deliberated upon under its auspices. Therefore, the SAARC does not provide an effective forum for appropriate guidance and solutions to these disputes.274 In the result, to spearhead regime building, India must choose to become a benevolent hegemon, and balance its interests with those of the other states with the intent to promote compromise, comity and regional peace. Given the dynamics of South Asia, if a regional regime has to germinate and sustain itself for the long run, it must emerge spontaneously, facilitated by the parties themselves in promotion of their self-interests, rather than it being imposed. Proponents of regime theory argue that as rational actors, states

270 271

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Present, and Future” (2011) 25:4 Ethics & Int’l Affairs, online: Ethics & International Affairs . Staff Writer, India Military Strength (11 May 2012) online: GFP, The GFP Top 10, India . For instance, the Government of India has provided USD1 million to the SAARC Coastal Zone Management Centre to strengthen it. SAARC Ministerial Statement on Cooperation in Environment (“Delhi Statement”) ¶18, online: India Environment Portal . Stewart Watters, “China Encircles India” The Diplomat (20 July 2011), online: The Diplomat ; Raashi Bhatia, “India encircled by China’s string of pearls?” Reuters (28 July 2009), online: REUTERS . Ramasamy R. Iyer, “A Maverick View” in Surya P. Subedi, ed., International Watercourses Law for the 21st Century: The Case of the River Ganges Basin (Hampshire: Ashgate Publishing Ltd, 2005) 47 at 53. SAARC Charter, arts. X(1) & (2), online: SAARC, About SAARC, SAARC Charter .

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engage in regime creation if expected benefits exceed expected costs. Despite a fair knowledge of the coastal processes and the dangers of permitting reckless development, most South Asian coastal countries have been unable to actively pursue coastal zone management. Beyond the distrust generated by their disputes over sovereign title to territorial sea areas, and as regards undelimited maritime boundaries, the bleak ecological prognosis for the region in light of potential climate change and SLR impacts offer sufficient impetus for greater cooperation. So is their common need to engender the economic survival of their burgeoning populations. A third major factor to induce cooperation relates to their divergence in capacity and resources to operationalize ICZM. They need to pool their resources to be able to do this. As SASAP points out: [t]he region as a whole has important assets in terms of human and institutional capacity in relevant scientific, economic, social and technological fields and planning experiences. Therefore, specifically targeted regional co-operation activities could boost the exchange of experiences, information, data and expertise in relevant sectors; promote co-operative research programmes and technology transfer; and support the development of suitable planning guidelines, awareness-raising initiatives, scientific and technological means and capacity-building activities.275 Moreover, one of the fundamental principles in the United Nations Framework Convention on Climate Change276 is the transfer of financial resources and environmentally sound technologies from Annex II parties and developed country parties to developing country parties, particularly to those that are vulnerable to the adverse consequences of climate change, to enable them to meet their requirements under the convention.277 From the perspective of CCCA, already the poorly constructed sea walls in South Asia are posing environmental problems. For instance, it has been reported that the sea wall constructed around the city of Malé traps water during storm surges, leading to the flooding of the city. To allow the water to escape, a part of the wall had to be destroyed.278 Such incidents highlight the need for new technology, designs and financial assistance. When SAARC member states develop a common position, they can

275 SASAP, supra note 16 at 7. 276 See generally UNFCCC, supra note 4. 277 Ibid., art. 4.3. 278 Clive Howard Schofield, The Trouble with Islands (LL.M Thesis, The Faculty of Graduate Studies, University of British Columbia, 2009) [unpublished] at 225.

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enhance the chance of receiving needed help under the climate change regime to adapt to these and other difficulties. As seas rise, the number of climate refugees will also increase, raising serious issues concerning their relocation and status. South Asia is already plagued by illegal immigration. With the Maldives slated to go under the sea and large tracts of coastal Bangladesh also to be badly affected, what happens to these refugees must be a matter for preparation today, not later. The poor in these countries cannot move to distant lands, and since all the other coastal countries in the region will be burdened with their own internally displaced people, the problem of climate refugees and the need for a humane response warrants regional cooperation. Other than dealing with each other to resolve such transboundary matters as the conservation of the Sundarbans mangrove ecosystem, especially for India, Bangladesh and Pakistan, South Asian regional cooperation on transboundary water sharing is critical. And as seen in chapter 3, this has far-reaching implications for the stability of coastal resources in the region, such as deltas and estuaries. As well, this will enable them to present a united front for cooperation with countries situated beyond the region, but which have interests in the use of the region’s waters.279 In short, there is a need for greater cooperation to facilitate knowledge sharing, developing capacity, and devising collective responses to meet the challenges posed by climate change and SLR. Clearly, coastal South Asia must look beyond their disputes and differences to garner the political will to cooperate regionally in marine and coastal conservation for each country’s optimum benefit. 8.5

Building a South Asia Regional ICZM Regime: A SWOT Analysis

The propositions of regime theory as discussed above provide rationales for regional regime building on ICZM and CCCA implementation in South Asia in light of the region’s compelling factual circumstances to do so. To further explicate the need for this regional regime, a SWOT framework analysis is appropriate. 279 In this context, it must also be noted that transboundary water sharing in South Asia is acquiring new dimensions. China is proceeding to construct three major dams on the River Brahmaputra. This may affect lower riparians like India and Bangladesh and the coastal deltas. See Ananth Krishnan, “China gives go-ahead for three new Brahmaputra dams”, The Hindu [of India] (30 January 2013) online: The Hindu .

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8.5.1 Strengths Perhaps the most important strength held out by a regional regime is that it can contribute to regional stability and peace. Given that the region’s resources are unable to meet the requirements of its ever-increasing population, climate change and SLR impacts will further deteriorate life quality, and can lead to social instability, which may manifest in inter-state wars and ethnic strife. The regime will enhance the political commitment of the countries to SCD and the ICZM plans and programs will stimulate concrete steps to be cooperatively pursued by the countries that subscribe to it. Indeed, acting in view of the coastal and geographical realities of South Asia, a regional regime can help integrate actors and actions and prompt the development and use of identical scientific methods and the sharing of comparable data. It will rationalize allotment of resources, such as by the creation of common pools and institutional processes to monitor and facilitate compliance. In this scenario, there will be no free­­-riders to benefit at any state’s expense without contributing its part to the effort. A regional regime can also prompt the mainstreaming of adaptation into existing developmental efforts. 8.5.2 Weaknesses Even though climate change and SLR provide a trigger for South Asian nations to move towards greater cooperation, one major weakness that can undermine the stability of a putative regional regime on ICZM is the lack of trust among the countries. It must be admitted that given the nature of the resources at stake in the disputes among these countries—coastal and marine resources and the sharing of transboundary rivers—it is likely that mutual distrust will persist even after a regional regime on ICZM is in place. The various regional platforms presently available, namely, the South Asian Seas Regional Seas Programme and the SAARC, have not fostered regional cooperation to operationalize ICZM and CCCA. There are also differences in the systems of government in these countries: Bangladesh, Sri Lanka, and the Maldives are unitary states, while India and Pakistan are federal. In some of these countries, there is a well-developed system of local self-government that is constitutionally ordained, while in others; the emphasis is more on centralization. Even religion exerts an important role in determining the contours of governance in the majority of these countries.280 This divergence in 280 The Constitution of the Democratic Socialist Republic of Sri Lanka, 1978, art. 9 (foremost place to Buddhism); WIPO, Maldives: Constitution of the Republic of Maldives, 2008, art. 2, online: Ministry of Tourism Arts and Culture (the Maldives is a sovereign, independent, democratic Republic

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governance systems makes the implementation of a regional regime on ICZM, which has overwhelming governance connotations, a difficult prospect, as it will have to cater to these varied contexts. Additionally, the crushing levels of poverty in the region means the states may not commit the level of funding and other resources required to support the implementation of regional programs. Furthermore, there is a general emphasis by the states on short-term economic development and an eagerness to assert sovereignty over natural resources within their national jurisdictions.281 This disposition can undermine the potential of any regional regime. As well, South Asia is generally plagued by poor institutional capacities and corruption, and this does not bode well for establishing an effective regional regime,282 which requires efficient correlative national institutions to support it. It must be admitted also that extant capacities are ill-suited to the requirements needed to work an ICZM program.283 In short, coastal South Asia needs a special cadre of officials to lead and implement the program, and this is presently not available. Another weakness is the general poor level of law enforcement, particularly of environmental laws, at the respective national levels. Even though all the countries have subscribed to various international agreements and many have domestic legislations and institutions to carry out the obligations so assumed, national level implementation of environmental law remains poor. Not only are the laws barely internalized among a largely functionally illiterate population, but there is also low public awareness of the importance of conserving coastal resources. Top-down models, and excessive bureaucratisation to the exclusion of the participation of coastal communities mark civil administration in this issue-area, which can also weaken the regime. 8.5.3 Opportunities Despite the above weaknesses that threaten its prospect, there are significant opportunities for coastal South Asian states to develop and mainstream ICZM via a regional-level instrument. A regional regime on ICZM can provide an based on the principles of Islam); Constitution of the People’s Republic of Bangladesh, 1972, art. 2A (state religion of the republic is Islam); The Constitution of the Islamic Republic of Pakistan, 1973, art. 2 (Islam shall be the state religion of Pakistan). 281 For further details, see Ch 3. 282 See generally Deborah Hardoon & Finn Heinrich, Daily Lives and Corruption, Public Opinion in South Asia (Berlin: Transparency International, 2011). 283 For more details on the implementation of coastal management and problems faced in South Asia, see Ch 3.

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opportunity to coalesce individual national efforts in contexts that are relevant to ocean and coastal management, like marine pollution, and the creation of a network of marine protected areas. In this regard, regional agencies and institutions can assist member states to build capacity, develop sound science, and share their resources in these related areas as well. Another important opportunity held out by a regional regime is associated with the fact that environmental and coastal management in South Asia is a reactive process, generally brought to life in response to specific disasters.284 Once the disaster settles, nothing more is done to prepare for its recurrence. A regional instrument on ICZM can stimulate the development of well-articulated responses, in place of the knee-jerk and short-term quick fixes that have been the norm. A regional regime also provides opportunities to implement various international law instruments the South Asian states are party to in light of their region’s requirements. The SAARC Coastal Management Center, which can serve as a vehicle to promote ICZM, can be revitalized by a regional regime to serve as a platform for epistemic communities to develop and contribute to the growth of science and technology relevant to CCCA and ICZM implementation. Such a regime can also lead to unified action by South Asia at such forums as the UNFCCC’s Conference of the Parties negotiations to highlight recognition for their needs and for the various forms of assistance they require to combat SLR through CCCA.285 Presently, the LOSC has not caused the South Asian Regional Seas Programme, and its Action Plan to move toward a binding instrument to support SASAP. In this regard, a regional regime on ICZM can serve as a bridgehead to rectify this inertia. Not only this, but its emergence is also likely to help mobilize international funding for ICZM projects because such arrangements “motivate international donors to get more involved in ICZM issues.”286 284 For example, it was after the Indian Ocean tsunami that the coastal nations of South Asia enacted disaster management statutes. Tony George Puthucherril, “Climate Change, Sea Level Rise and Protecting Displaced Coastal Communities: Possible Solutions” (2012) 1 Global J Comp L 225 [Puthucherril, “Climate Change”]. 285 In September 2010, the Bangladeshi Prime Minister, Sheikh Hasina, proposed a joint South Asian initiative to mobilize international support under the UNFCCC Protocol to ensure the social, cultural and economic rehabilitation of climate change-induced displaced people. “PM warns of climate refugee crisis”, The Daily Star [of Dhaka] (5 June 2011) online: The Daily Star ; see also Jane McAdam, “Swimming Against the Tide: Why a Climate Change Displacement Treaty is Not the Answer” (2011) 23:1 Int’l J Refugee L 2 at 18. 286 Rochette & Billé, “ICZM Protocols”, supra note 10 at 980.

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8.5.4 Threats Significant threats that can derail a nascent regional regime are the uncertainty implicit in the science of climate change and the fact that the impacts of climate change and SLR are not uniform on the coastal regions of South Asia. Another threat is the lack of regular monitoring of treaties as to their observation or otherwise. Development of an ICZM regime at the regional level may require expansion of existing institutions or the creation of new ones. This can be an expensive prospect and may involve curtailment of national sovereignty. States in the South Asian region may not be willing to invest resources, due to other pressing problems and demands for their finances. As noted also, the outstanding disputes in the region can jeopardize regional cooperation for ICZM. As well, that SASAP lacks a firm legal basis can prevent the maturing of the regional ICZM regime. Again, there is also the possibility that an overemphasis on the legal apparatus may lead to complacency in developing other tools and management methods. As Abraham Maslow said, “. . . it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”287 A fixation on legal tools without adequately developing other instruments can threaten the stability of the regional regime in the long run. Finally, a general threat that can undermine the stability of a South Asian regional ICZM regime is that unlike programs like the Mediterranean one that have taken some major steps to protect the coastal and marine environment, South Asia does not have the basics in critical areas like control of land-based sources of pollution. This means that the region does not have foundational hard environmental law implementation experiences in ocean and coastal management related issues to build its ICZM regime upon. Accordingly, a regional approach can lead to disparity in terms of the protections available, contribute to fragmentation and impede the development of international regimes in such core areas.288 The strengths and opportunities offered by the adoption of a regional focus to ICZM in South Asia are immense. The reasons adduced above in its favour, create optimism in respect of such an approach to ICZM implementation.289 While there are threats and weaknesses, these are not insurmountable. As the 287 Abraham H. Maslow, The Psychology of Science: A Reconnaissance, eBook ed (2002) at 15. 288 Alan Boyle, “Globalism and Regionalism in the Protection of the Marine Environment” in Davor Vidas, ed., Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Norway: Cambridge University Press, 2000) 19 at 33; see also Hassan, supra note 25 at 185. 289 See generally Julien Rochette & Raphaël Billé, “ICZM Protocols to Regional Seas Conventions: The Wonder Drug for Coastal Sustainable Development?” (PowerPoint presented to the 10th Annual Colloquium of the IUCN Academy of Environmental Law, Baltimore, United States, July 1–5 2012).

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SWOT Analysis: Highlighting the Need for a Regional Regime in South Asia Need for Regional Level ICZM: A SWOT Analysis

S

W

Strengths

Weaknesses

1. Contributes to regional peace and security and can address transboundary impacts 2. A normative framework for sustainable coastal development 3. Guidance and direction to coastal states to develop national level responses 4. Capacity-building and sharing of resources 5. Creates new institutions at the regional level to monitor and facilitate compliance 6. Streamlines coastal adaptation actions

1. Mistrust among countries 2. Inability to translate legal stipulations into practical policies due to varied national contexts 3. Widespread poverty and institutional weakness 4. Poor law enforcement

O

T

Opportunities

Threats

1. Can spur development of regional cooperation in other areas 2. Promote development of well-articulated responses to environmental problems 3. Promote implementation of international environmental obligations 4. Utilise the SAARC Coastal Management Centre to promote ICZM 5. Influence better outcomes at UNFCCC negotiations 6. Protect climate change refugees 7. Contribute to the development of a regional instrument to support the South Asian Regional Seas Programme and Action Plan 6. Secure international funding to ICZM projects

1. Uncertainty regarding the potential impacts of climate change and SLR 2. Non-commitment of resources 3. Absence of a specific instrument to support SASAP implementation 4. Outstanding disputes 5. Over-emphasis on law may lead to complacency in developing other tools and methods 6. Can contribute to fragmentation and impede the development of international regimes in the area

SWOT reveals, the biggest threats to a nascent South Asia regional regime are boundary disputes, such as the intractable Kashmir dispute. A solution to this dispute by itself will greatly contribute to peace to South Asia in general, and to the Indian subcontinent in particular.290 290 BBC News, “The Future of Kashmir?”, online: BBC News .

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8.6 Conclusion The impacts of climate change and SLR interact with existing social, economic and environmental factors to produce catastrophic results. The challenge in South Asia is how to foster SCD while balancing and promoting environmental, social, and economic development objectives in mutually reinforcing ways. At the regional level, the performance of the South Asian Regional Seas Programme and the SAARC also affirms that the parties are more motivated by poverty eradication concerns and their need to quickly develop their national economies, than by climate change and SLR. Nevertheless, it is necessary that national frameworks be developed and strengthened to propel the coastal states of South Asia towards more sustainable patterns of coastal development. As this chapter demonstrates, a regional regime on ICZM for South Asia can provide direction to national efforts that must be accelerated and expanded to place ICZM at the center of the broader environmental agenda to enhance the prospects of adaptation to climate change and SLR. As argued, a regional approach and its related regime building not only provide an opportunity to implement obligations aimed at domesticating the regional level instrument; it also promotes the development of appropriate legal and competent management structures. As well, given the limited financial resources and pool of experts in the region, a regional approach will help to develop epistemic communities, promote capacity development, facilitate sustained funding, and generate scientific data, particularly in respect of SLR and other climate change impacts. A regional approach can also help parties cooperate to deal with transboundary issues such as pollution control, habitat destruction and even provide for environmental impact assessments for development projects that have transboundary impacts. The ultimate pay-off is to further regional prosperity by building trust and confidence among the coastal countries of this region, developing solutions to problems that have transboundary ramifications, settling maritime boundary disputes, developing better capacity by putting coastal management techniques into practice, and promoting the sharing of technology and resources. In this way, the nations of this region can save themselves and the rest of the world, as much as possible, from the looming spectre of deepening poverty, political instability, climate-related pestilences and regional conflicts that can spill over to other parts of the world.

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A Principled Approach to Sustainable Coastal Development in South Asia 9.1 Introduction In developing and implementing the sustainable development agenda, in many situations, cooperation between states is considered sine qua non and this can take several forms, including cooperation at the regional level.1 As seen in the previous chapter, regional cooperation is recognized in several international environmental law treaties as an important pathway to deal with problems that are sui generis to a particular region. As well, it emerges as a feasible platform at which states can join together for dealing with global problems. For instance, climate change and sea level rise (SLR) are global problems, but they affect regions in specific ways, necessitating regional cooperation to develop mitigation and adaptation solutions. The preceding chapter also set out several other reasons that point to the need for a regional ICZM instrument for South Asia. These include the fact that the coastal countries in this region lack the necessary national capacities and resources to effectively operationalize ICZM programs. At the same time, the impacts of SLR and other climate change processes cannot be contained within national boundaries; and their consequences, such as mass migrations, and development stalling, can aggravate conditions of poverty. For these and other reasons, it was argued that in regard to coastal zone management, their fledging ICZM efforts must be underpinned by the development of national coastal laws. As well, that to streamline and strengthen national efforts in the issue area, a regional instrument on ICZM can be a linchpin. The discussion below draws from different parts of this study to identify a minimum set of principles or elements that must be set in a regional level ICZM regime to inform national-level coastal law-making and, in this way, to 1 See United Nations, Charter of the United Nations, 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945), art. 1; United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, 14 June 1992, 31:4 ILM 874, prin. 27; Philip Saunders, “Maritime Regional Cooperation: Theory and Principles” in Mark J. Valencia, ed., Maritime Regime Building: Lessons Learned and Their Relevance for Northeast Asia, vol. 36, Publications on Ocean Development (The Hague: Martinus Nijhoff Publishers, 2001) 1 at 1.

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facilitate the move towards sustainable coastal development (SCD). The principles highlighted are those that can foster a balance between coastal environmental protection and economic development, and provide for coastal climate change adaptation (CCCA), all via the ICZM methodology. In fact, this chapter reemphasizes the utility of a regional approach to ICZM implementation and of fastening CCCA onto an ICZM process. 9.2

Form and Substance: Elements of a Regional ICZM Regime

Clearly, there is ample room for improving coastal management in South Asia to produce a paradigm shift in the way coastal spaces and resources are managed. While the need for a regional instrument to spur the change has been demonstrated, the question then is what form should such an instrument take? Laws and legal instruments typically evolve incrementally. Identifying and adopting the most apt mode for regional cooperation is a matter of choice. While a spectrum of options is available to the coastal states to develop a regional regime, its eventual form and content will depend upon the countries that comprise the region.2 For coastal South Asia, it may be premature to move towards a framework treaty and related institutional arrangements for the present. Treaty-based environmental regimes are found to generate antagonism in this region because these nations want to preserve their sovereignty and economic opportunities. Even so, the soft-law commitments they have at the moment have not produced tangible results for coastal management in the region. Nevertheless in such a scenario, it seems best for these countries to agree on a set of soft-law principles to guide the development of an ICZM regional legal regime relating to the coastal zone and to operationalize ICZM and implement CCCA actions. Consistent with the principles of territorial integrity and permanent sovereignty over natural resources,3 such an instrument must be rooted in the good neighbor principle,4 which requires, among others, information-sharing, notification, consultation, good-faith negotiations, and cooperation both in planning projects with potential trans-

2 Saunders, ibid.; see also Patrick Christie, “Is Integrated Coastal Management Sustainable?” (2005) 48 Ocean & Coast Mgmt 208 at 221 (ScienceDirect). 3 General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources, GA Res 1803 (XVII), UNGA, 17th Sess, Supp (No. 17) at 15, UN Doc A/5217 (1962). 4 See Stockholm Declaration of the UN Conference on the Human Environment, 16 June 1972, UN Doc A/CONF48/14/Rev 1 (1973), 11 ILM 1416, prin. 21; Trail Smelter Case (US v Canada), 3 RIAA 1911 (1941) at 1965; see also Lac Lanoux Arbitration (France v Spain), 12 RIAA 281 (1957).

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boundary environmental impacts, and in responding to emergencies.5 In this regard, the attempt should not be to hastily put together a regime, but rather to develop it steadfastly by incremental steps. Already, the South Asian Seas Action Plan (SASAP) has ICZM as one of its central pillars. Even though this document does not, per se, state that ICZM should be implemented via a legal route, one of the general goals of SASAP is to “promote policies and management practices for the protection and development of the marine and coastal environment on a national and regional level, including appropriate legislation at the national level.”6 Again, it has been pointed out that: [n]ational legislations and regulations pertaining to the protection and management of the marine and coastal environment which are at various stages of development should be reviewed, and when necessary, expanded, updated or strengthened . . . National legislations and regulations for the protection and development of marine and coastal resources should be harmonised whenever international uniformity is required to meet the obligations of such legislation . . . Technical assistance and advice on the drafting of national legislation for the effective implementation of relevant international agreements should be provided upon request.7 The SASAP, as presently worded, does not specify the modalities of how “[t]his technical assistance and advice on the drafting of national legislation” is to be worked out. Accordingly, the cluster of elements identified in this chapter as the nucleus of a coastal law, may be embodied in the SASAP. In due course, these elements may metamorphose into the content of a hard-law instrument of detailed rules, or one comprising a mixture of both hard- and soft-law elements, to frame a regime that may develop, over time, capable of mandating increasingly firm obligations. This view comports to the approach adopted by the European Union where the strategy was initially to push for ICZM via a non-binding recommendation. This recommendation helped to popularize

5 UNEP, Environmental Law Guidelines and Principles on Shared Natural Resources, GC Dec No. 6/14, 33 GAOR, Supp No. 25 at 154, UN Doc A/33/25 (1978), prins. 1, 5–7, 9. 6 Action Plan for the Protection and Management of the Marine and Coastal Environment of the South Asian Seas Region, ¶6.(a), online: SACEP, Documents, Action Plan/Strategies . 7 Ibid. at 5, part C (entitled “Environmental Legislation”).

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the concept in the member states and presently work is ongoing to develop a legally binding directive that links ICZM with marine spatial planning. In the circumstances of South Asia, the foregoing is considered the most feasible option for developing a comprehensive regional regime. But the states can also choose from a range of options—a framework convention,8 an informal management regime,9 or an intergovernmental forum.10 Whatever the form, a set of principles to operationalize ICZM via the SASAP will influence the South Asian coastal countries to move away from their present piecemeal approach to coastal zone management, which is also centralized in methodology and development-oriented in perspective, to a more holistic system that is decentralized, people-centric, and sustainable development-friendly. This new approach will help to promote socio-ecological resilience and integrate a wide range of stakeholders into the pursuit of sustainable ocean and coastal development and management. More importantly, a national legal framework based upon these principles will support adaptation programs to respond to the challenges posed by the impending impacts portended by SLR. Below, the elements that can inform the prospective regional regime on ICZM in South Asia (to be incorporated into the SASAP) is set out. The aim is 8

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As in the Convention for the Protection of the Mediterranean Sea against Pollution, 16 February 1976, 15 ILM 290 (entered into force 12 February 1978, revised in Barcelona, Spain, on 10 June 1995 as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean); “Final Text of the Amended Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean, Adopted in Nairobi, Kenya on 31 March 2010, UNEP(DEPI)/ EAF/CPP.6/8a/Suppl” in UNEP, Final Act of the Conference of the Plenipotentiaries for the Adoption of the Amended Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean, Adopted in Nairobi, Kenya on 31 March 2010, UNEP(DEPI)/EAF/CPP.6/10/Suppl. The Gulf of Maine Council on the Marine Environment typifies this. It is a US-Canadian partnership of government and non-government organizations working to maintain and enhance environmental quality in the Gulf of Maine. About the Gulf of Maine Council on the Marine Environment, online: Gulf of Maine Council on the Marine Environment ; see also Lawrence P. Hildebrand & Aldo Chircop, “A Gulf United: Canada-U.S. Transboundary Marine Ecosystem-based Governance in the Gulf of Maine” (2010) 15 Ocean & Coastal LJ 339 at 375 (QL). Like the Arctic Council established in 1996, as a high level intergovernmental forum that promotes “cooperation, coordination and interaction” among the Arctic States on common issues that affect the Arctic. For further details, see Arctic Council, About the Arctic Council, The Arctic Council online: Arctic Council ; see also Timo Koivurova & David L. VanderZwaag, “The Arctic Council at 10 Years: Retrospect and Prospects” (2007) 40:1 UBC L Rev 121.

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to highlight that a modified SASAP can influence and catalyze the design of coherent and holistic national laws to engage the participation of all interested actors in coastal zone management, and, thus, minimize conflicts and mitigate environmental problems to enhance prospects for SCD. 9.2.1 Legislative Objectives and Principles At the outset, the coastal law must define the objectives that it seeks to secure and the foundational principles on which it is based. Clearly, the overriding objective and the central pillar of a South Asian national coastal law must be SCD. It is from this principle that all other substantive and procedural elements of the law must flow. And here, the derivative elements of such a law must reflect among others, the following: the principle of integration, coordination, the ecosystem based approach, the precautionary approach, the doctrine of public trust, stewardship, the polluter pays principle, community participation, inter-and intra-generational equity, social equity, subsidiarity, sustainable use, conservation, and economic efficiency.11 Many of these principles find recognition in the legal systems of the South Asian coastal countries as basic to fostering best practices in resources management and when they are incorporated into a coastal law, it can enhance its normative strength to support programs and plans for SCD. Such a coastal law will also facilitate the coastal states’ compliance with their obligations under international coastal and marine environment protection treaties. Among the principles, one that needs special mention is precaution. As pointed out earlier in this work, in certain circumstances, the actual effects of developmental activities on the coastal zone may be uncertain or unknown. This is particularly so for climate change impacts and SLR. Even in the face of this uncertainty, it is necessary to ensure that development activities continue to be environmentally sustainable. The precautionary principle requires the taking of action that can be either preventive or anticipatory before scientific certainty of cause and effect can be established. To avoid social and economic damage and harm to coastal communities, the coastal law must further a preventive approach rather than a reactionary one. The precautionary principle, as a guiding tenet for decisions on developmental projects, particularly 11

National Environmental Management: Integrated Coastal Management Act, (S Afr), No. 24 of 2008, pmbl, s. 2 [SA, Integrated Coastal Management Act]; Oceans Act, SC 1996, c. 31, pmbl [Oceans Act]; Coastal Zone Management Act 1998 (No. 39 of 1998) [Barbados CZMA 1998]; Coastal Regulation Zone Notification, 2011, (N, SO19(E), 2011, India) [CRZN, 2011]; Coastal Protection Act 1979 (NSW), s. 3 [NSWCPA]; Coastal Protection and Management Act 1995 (Qld), s. 3.

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in the coastal zone mandates environmental impact assessment to anticipate the impacts of development and SLR.12 9.2.2 The Coastal Zone: Recognizing the Land-Sea Continuum The coastal zone is the marine-terrestrial margin of variable length. There is no universally accepted definition of what constitutes it, and its determination is essentially left to individual coastal states. However, without a clear and accepted definition of what constitutes the coastal zone, ICZM implementation is fraught with uncertainty. Therefore, the starting point for a coastal law is to define the area of its operation, the coastal zone. Deciding on and demarcating the coastal zone is no easy task. It requires careful planning and deliberation involving all major stakeholders. Moreover, the demarcation of a coastline must be consistent with relevant international law, such as the mandates under the United Nations Convention on the Law of the Sea, 1982. While its determination may ultimately be a political decision, the coastal zone generally comprises of coastal waters, adjacent lands and related coastal ecosystems like wetlands, deltas, and estuaries.13 The definitions of this zone under legislation reviewed in earlier chapters show that there is no uniform characterization. Generally, the zone will include coastal waters on the sea-ward side up to three nautical miles of territorial water14 or, in certain cases, the full extent of the territorial water limit.15 Or, depending on what the country deems appropriate, it may be extended even further.16 As far as the land-ward side is concerned, it generally stops at the mean high water-mark. While such demarcations are more or less fixed distance definitions, other relevant factors, like physical and biological features, administrative boundaries, and constructed landmarks, can be utilised in determining 12

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Coast Conservation Act 1981 (No. 57 of 1981, Sri Lanka) s. 16 [Sri Lanka CCA 1981]; see also EC, Protocol on Integrated Coastal Zone Management in the Mediterranean, [2009] OJ L 34/19 [ICZM Protocol] arts. 19 & 29. SA, Integrated Coastal Management Act, supra note 11, ch. 2; Law for the Protection of the Coastal Environment Law 2004 (No. 5764 of 2004, Israel), s. 1 [Israeli Coastal Law]; DecreeLaw Number 212–2000: Coastal Zone Management, 8 August 2000 (Cuba), s. 2, arts. 2–5 & s. 3 [Cuba CZM]. Sri Lanka CCA 1981, supra note 12, s. 42; see SA, Integrated Coastal Management Act, ibid., s. 1 (including territorial waters); Coastal Zone Management Act, (Belize), No. 5 of 1998, s. 2 [Belize CZMA] (coastal zone includes the territorial waters). CRZN, 2011, supra note 11, cl (v); Israeli Coastal Law, supra note 13, s. 2. For instance, Bangladesh includes its exclusive economic zones as part of its coast. For more details, see Ch. 3, Part 3.2.3. see also SA, Integrated Coastal Management Act, supra note 11, s. 1.

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the spatial extent of the coastal zone.17 Overall, the demarcation should be based on the “degree of coastalness”18 determined by the influence which the landward component of the zone exerts on the seaward areas, and vice versa. In any case, the coastal zone should be a manageable unit. 9.2.3 Integrated Coastal Zone Management Plans ICZM implementation has both prescriptive and functional dimensions. The coastal law is the prescriptive aspect. It lays down the norms of economic development and coastal environmental protection. The functional facet is secured via an ICZM plan. In fact, SCD can be realized in large measure by designing, developing and implementing both short-term and long-term objectives through an ICZM plan that harmonizes development, environmental protection, and user interests in the coastal zone.19 For South Asia, it is important that ICZM plans are utilized to further the implementation of CCCA and measures to prevent or mitigate the impacts of natural hazards.20 Prescriptively, the coastal law must provide for the creation of the ICZM plan with input from coastal communities and also lay out the guidelines for what achievable actions the plan should contain and specify the method for its implementation.21 As well, depending upon the national constitutional structure (a unitary state or a federation), the length of the coastal zone, the nature of coastal resources and population concentration, there can be provision for more than one coastal zone management plan, and in certain situations, even for a hierarchy of plans beginning with a national plan that lays down the 17 18 19

20 21

Robert Kay & Jacqueline Alder, Coastal Planning and Management, 2d ed. (Oxon: Taylor & Francis, 2005) at 2–8. Ibid. at 3. For reflections of this, see Coastal Development Authority Act 1994 (No. XXVIII of 1994, Sindh), ss. 12–13 [Sindh CDA 1994]; see Marine and Coastal Access Act 2009 (UK), 2009, s. 44 [UKMCAA]; Resource Management Act 1991 (NZ), 1991/69, ss. 56–58 & 64 [NZRMA]. More generally, see Kenya, National Environment Management Authority, Integrated Coastal Zone Management Action Plan for Kenya, 2011–2015 (Nairobi: NEMA, [nd]); Sri Lanka, Coast Conservation Department, Coastal Zone Management Plan, Sri Lanka 2006 (Colombo: Coast Conservation Department of the Ministry of Fisheries and Aquatic Resources Development, 2006), online: Coast Conservation Department, Downloads, Acts & CZMP ; see also Belize, Ministry of Forestry, Fisheries, & Sustainable Development Belize Integrated Coastal Zone Management Plan (Coastal Zone Management Authority & Institute, 2013) at 114–32. ICZM Protocol, supra note 12, art. 22. Oceans Act, supra note 11, s. 31; Barbados CZMA 1998, supra note 11, s. 4; Sri Lanka CCA 1981, supra note 12, s. 12; Belize CZMA, supra note 14, s. 23.

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strategic objectives with which provincial and local level plans must be consistent.22 To be appropriate, an ICZM plan structure for each coastal state will also have to focus on administration and implementation. In the context of South Asia, given its climate change vulnerabilities, a major administrative goal must be to develop adaptive management. To this end, the law must require that the plan must be subject to periodic revisions and updates.23 Implementing the ICZM Plan: A Lead Agency and the Principles of Horizontal and Vertical Integration Chapter 17 of Agenda 21 asks states to either establish or strengthen appropriate institutions to promote integrated management and sustainable development of marine and coastal areas.24 Accordingly, an important question is whether ICZM plans can be implemented by adroitly employing existing government agencies responsible for shoreline management, or is it essential to create a new institution? Creating new agencies for coastal management in the South Asian coastal countries is a tall order. At the same time, as matters stand, they also do not have effective institutions for ICZM implementation because of jurisdictional complexities, lack of capacity, bureaucratic apathy and corruption. Given the foregoing South Asian coastal reality, where it is clear that an existing institution may not be equipped to respond to the demands of the task mandated by ICZM, and despite the possibility of bureaucratic conflicts to protect existing areas of administrative authority against inroads from a new agency, creating a new agency to lead the implementation of ICZM may be a feasible option. Ultimately, whether or not to persist with an existing institution or to create a new one, is a decision that has to be made at the appropriate level of government. Whatever may be the case, the coastal law must provide for the creation or designation of a lead agency to steward the implementation of the ICZM plan, which it must lead in preparing. This agency, which should also enforce the coastal law, must come under the superintendence of a nodal 9.2.4

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SA, Integrated Coastal Management Act, supra note 11, ss. 44–52 (providing for national, provincial and municipal coastal management programs); see also EC, Recommendation of the European Parliament and of the Council of 30 May 2002 Concerning the Implementation of Integrated Coastal Zone Management in Europe, (2002/413/EC) [2002] OJ L 148/24, ch. IV [EC, ICZM Recommendation]. For instance, see Belize CZMA, supra note 14, s. 23(9), which requires revisions every four years. Nicholas A. Robinson, ed., Agenda 21 & The UNCED Proceedings, vol. 4, 3rd series, International Protection of the Environment (New York: Oceana Publications, Inc, 1993) at 307, ch. 17, ¶17.6.

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ministry that has overall responsibility in the issue area. In the unitary states of Bangladesh, the Maldives, and Sri Lanka, there can be a single lead agency, and in the federal systems of India and Pakistan, there can be more than one.25 Whatever be the case, the entity must be set at a higher bureaucratic level than the sectoral agencies to provide necessary leadership to harmonize sectoral actions.26 Overall, the lead agency must have authority to ensure coordinated decision-making in all matters concerning coastal zone resources exploitation, environmental protection, and development. Its coordinating authority may, under the law, be supported by the work of advisory bodies that supply scientific, administrative and other input to enable the agency achieve effective coastal management.27 Given its functions, the coastal law must authorize the agency to make regulations and develop policies and guidelines on the range of issues that affect the coastal zone,28 such as in regard to land-use planning, management of coastal and marine protected areas, conservation and restoration of degraded coastal ecosystems, creation and management of tourism-related infrastructure, regulation of aquaculture, and control of marine pollution. 9.2.5 Adapting to Sea Level Rise Of all the factors that impact the coastal and oceanic environment, the most grave are climate change and SLR. However, the complexity and uncertainty associated with climate change impacts on coastal zones often act as barriers to effective action. Therefore, the central mission of any coastal law must be to provide a framework of rules and measures like establishing SLR benchmarks, emphasizing environmental impact assessments, and zoning to empower coastal managers to deal with the problems posed by climate change and SLR. As discussed in preceding chapters, a coastal law can promote CCCA by providing for measures on retreat,29 accommodation30 and protection.31 Its rules can also balance coastal development with coastal environmental protection 25 26

27 28 29 30 31

ICZM Protocol, supra note 12, art. 7(1)(a); SA, Integrated Coastal Management Act, supra note 11, ch. 5. Cormac Cullinan, Integrated Coastal Management Law: Establishing and Strengthening National Legal Frameworks for Integrated Coastal Management, FAO Legislative Study, No. 93 (Rome: FAO, 2006) at 62. Belize CZMA, supra note 14, ss. 6–7; Sri Lanka CCA 1981, supra note 12, ss. 6–7. Belize CZMA, ibid., s. 36; Barbados CZMA 1998, supra note 11, s. 39. SA, Integrated Coastal Management Act, supra note 11, s. 25 (providing for coastal setback lines). Ibid., s. 15(1) (state cannot be compelled to prevent erosion). Ibid., s. 49 (municipal coastal management program to deal with coastal erosion).

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to improve the adaptive capacities of coastal communities and to enhance coastal ecosystem resilience.32 Its rules on accommodation can prescribe minimum ground elevation for new development. As to retreat and protection, the rules may demand the strengthening of sea walls and to increase their heights if need be. In these two areas, however, the law must promote soft armoring and living shorelines that allow nature to ensure its own equilibrium.33 In regard to hard armoring, the law’s emphasis must be on ensuring that their utilization in one location must not be at the expense of coastal ecosystems located elsewhere.34 Finally, as also a social welfare legislation to support ICZM, the coastal law must make room, particularly for the participation of coastal communities in its implementation, including by recognition of their traditional knowledge, so that in the long-run, adaptive capacities can be strengthened. 9.2.6 Land Use Planning, Zoning, and the Power of Acquisition Given increasing trends towards coastal urbanization, planning for coastal development is extremely vital. Coastal hazards exact huge costs in terms of lives and money. Despite this, migration to coastal areas in South Asia continues with no signs of abatement, and this reshapes coastal landscapes. New infrastructure in the form of roads and ports, industries and facilities for power generation and transmission, and so on, are necessary for the social, economic and cultural well-being of coastal communities and must be provided. However, as cities grow and populations expand in ways that encourage sprawl, mangrove forests may be cleared, wetlands and salt marshes drained, coral reefs destroyed, beaches encroached upon, and rivers and lakes channeled. In the coming decades, it is expected that the development and use of the coastal zone will increase many times and that there will be a growing demand for coastal space. This will place unprecedented pressures on coastal areas and resources, including their fragile ecosystems. The challenge is how law can create a balance between conservation and infrastructural development. The answer resounds in careful planning of all development projects located in coastal areas. The law must mandate their environmental impact 32

NSWCPA, supra note 11, s. 3(h) (encouraging and promoting plans and strategies for CCCA). 33 US, Living Shoreline Protection Act, Md C Ann Envir §16–201 (2008). 34 Parties should adopt measures to minimize the effects of coastal works including coastal defense works on coastal erosion. ICZM Protocol, supra note 12, art. 23(2); California Coastal Act of 1976, 20 PRC §30235 [Cal CA, 2013]; see also Cuba CZM, supra note 13, art. 20(a) (protection works not to cause damage to the coastal zone).

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assessment, taking into account future scenarios regarding climate change and SLR for their design. Essentially, no new development may, as far as possible, accentuate existing and future vulnerabilities.35 Land use planning and zoning are most valuable tools for careful planning of the shoreline.36 Once the boundaries of the coastal zone are determined according to factors such as sensitivity to SLR impacts and the geographical, cultural, historic, ecological and biodiversity uniqueness of a particular area, coastal areas must be classified as appropriate for development, for nature preservation, and for protection. Even in the coastal states of South Asia, which face shrinking coastal territories, the law’s provisions for planning and zoning must reflect how coastal zone vulnerabilities may be prevented from being aggravated. Its provisions must protect coastal communities that are dependent on coastal lands for their livelihood, minimize coastal erosion, and preserve valuable infrastructure.37 It is in this regard that the laws determination of the mean high and low water, and subsequent setback lines, will essentially demarcate the border between development and environmental protection and facilitate in adapting to SLR.38 Development that the law authorizes should promote “smart growth development,” a concept that emphasizes development in areas with existing infrastructure and de-emphasizes development in less suitable areas.39As well, with the prospect of SLR in South Asia, it may become necessary to relocate coastal communities out of harm’s way through acquisition of coastal land. Apart from the state, private owners of coastal land may choose to adopt their own measures to protect their property, like placing sand bags and constructing seawalls, which may endanger nearby properties. It may also become necessary to prohibit rebuilding structures damaged by storms and other extreme weather events.40 Dealing with these exigencies require for the coastal law to 35

For instance, see New Zealand, Dep’t of Conservation, New Zealand Coastal Policy Statement 2010 (Wellington: Dep’t of Conservation, 2010) policy 24 (calling upon authorities to consider SLR and other climate change impacts for over at least 100 years in assessing coastal hazard risk). 36 SA, Integrated Coastal Management Act, supra note 11, ss. 62, 17. 37 India’s Coastal Regulation Zone Notification, 2011, and its predecessor coastal law, the Coastal Regulation Zone Notification, 1991, are primarily zoning laws. There are flaws in India’s approach as the several exemptions practically water down the zoning scheme and people with very poor adaptive capacities are placed in harm’s way. 38 SA, Integrated Coastal Management Act, supra note 11, s. 25. 39 Stephanie Ramia, “Smart Growth: The Toolbox for Addressing Sprawling Development in Coastal South Carolina” (2010) 9 Se Envtl LJ 173 at 186 (HeinOnline). 40 For more details on rolling easements, see Ch. 6, Part 6.3.1.

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authorize the responsible agency to acquire private property subject to reasonable compensation.41 Such property may also be acquired to ensure public access and continual enjoyment of coastal resources.42 Because of the larger public safety and livelihood issues at stake, coastal law in South Asia must establish compensation levels that the state can promptly afford.43 Community-based Approaches, Co-management, and Protecting the Rights of Autochthonous Peoples Successful implementation of ICZM models depends largely on mature governance systems, clear demarcation of powers between national and provincial governments, and in certain cases, the presence of democratic institutions, including at the local government level. These factors are largely absent in most of the South Asian coastal countries, which are often characterized by weak governance and institutions that centralize power and its exercise.44 This contrasts with the decentralized community-based management traditions that have widespread recognition in South Asia as successful paradigms for managing natural resources.45 Decentralized community-based management incorporates local knowledge and experience and is based on a bottomup approach. It acknowledges that the community, in its capacity as resource 9.2.7

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Coastal Development Authority Act, 1990, (Kenya), No. 20 of 1990, s. 16; SA, Integrated Coastal Management Act, supra note 11, s. 9; Barbados CZMA 1998, supra note 11, s. 20(2). Parties may adopt mechanisms for acquisition, cession, donation or transfer of land to the public domain and institute easements on properties. ICZM Protocol, supra note 12, art. 20(2); Balochistan Coastal Development Authority Act 1998 (No. 1 of 1998, Balochistan), s. 15. SA, Integrated Coastal Management Act, ibid. (empowering the minister to acquire private land for the purpose of declaring it as coastal public property); ICZM Protocol, ibid., art. 20 (public access to the sea); see also UKMCAA, supra note 19, part 9 (dealing with coastal access). SA, Integrated Coastal Management Act, ibid., s. 14(5)(a). It provides that if the high water mark (HWM) moves inland of a land unit due to coastal erosion, SLR, etc. and remains so for three years, the owner of that land looses ownership of any portion of the land situated below the HWM, and is not entitled to compensation from the state. However, if the movement of the HWM is a reasonable foreseeable consequence caused by an intentional or negligent act or omission by a state organ, then this no-liability rule will not apply. Ibid., s. 14(5)(b). For instance, despite having enacted a coastal legislation that has prompted the creation of ICZM plans, greater centralization has reduced the efficacy of the coastal management program in Sri Lanka. For more details, see Ch. 3, Part 3.2.4. Fabio Zagonari, “Integrated Coastal Management: Top–Down vs. Community-Based Approaches” (2008) 88:4 J Envtl Mgmt 796 (ScienceDirect).

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user must participate in developing and implementing management programs for sustainable resource use. By this, the community becomes accountable for management outcomes and such an approach aligns with the principle of subsidiarity.46 Decentralized community-based management offers the ICZM process a local institutional base for implementing its plans. Community involvement thus decentralizes decision-making and makes room for broader benefitsharing.47 In South Asia, the challenge is to afford legal recognition to informal traditional governance structures and to rationalize and harmonize their functions with the formal structures. This means incorporating their knowledge about coastal resources, marine habitats, fishing practices, and their own codes of conduct and resource management rules48 into devising adaptation measures to deal with climate change impacts and SLR into the operation of the formal legal systems.49 This will give the broader scheme for ICZM management greater public support and legitimacy, as indigenous knowledge becomes an aspect of the means for the management of the coastal zone.50 In South Asia, patriarchy and social hierarchies continue to play important roles in organizing society, particularly rural communities. By preserving and selling fish, women emerge as indispensable to subsistence coastal economies. In addition, they are also gatherers of natural products like water, firewood, corals, and shells. As discussed in chapter seven, despite their central role in supporting coastal economies, women are sidelined to the periphery in the decision-making process. Since equity is at the heart of legal regulation of the coastal environment and of its resources, a coastal law must recognize the important role played by women and secure their place in the ICZM process.51 46 Marcus B. Lane, “Towards Integrated Coastal Management in Solomon Islands: Identifying Strategic Issues for Governance Reform” (2006) 49 Ocean & Coast Mgmt 421 at 436 (ScienceDirect). 47 Oceans Act, supra note 11, s. 31. 48 T. Rathakrishnan et al., “Traditional Fishing Practices Followed by Fisher Folks of Tamil Nadu” (2009) 8:4 Indian J Traditional Knowledge 543 at 545; J.C.K. Huang, “Climate Change and Integrated Coastal Management: A Challenge for Small Island Nations” (1997) 37:1 Ocean & Coast Mgmt 95 at 97 (ScienceDirect). 49 Traditional knowledge saved ancient tribes on India’s Andaman and Nicobar Islands from the worst impacts of the tsunami. Subir Bhaumik, “Tsunami folklore ‘saved islanders’”, BBC News (20 January 2005) online: BBC News . 50 Huang, supra note 48. 51 “Plan of Implementation of the World Summit on Sustainable Development” in UN, Report of the World Summit on Sustainable Development Johannesburg, South Africa, 26 August–4 September 2002, A/CONF.199/20* (New York: UN, 2002) ¶67(b).

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Similarly, the caste system though normatively proscribed, continues to exist in certain coastal areas of South Asia, with the consequence that traditional artisanal and other autochthonous fishing communities are sometimes excluded from the decision-making process. The law must correct these inequities by recognizing the roles played by these people and secure their participation in the ICZM process.52 Such recognition will help to strengthen the adaptive capacities of women and marginalized communities. In sum, the recognition of local communities and their knowledge and practices is pivotal to their well-being, and to the successful implementation of a national ICZM program in South Asia. It is the role of the coastal law to institutionalize this reality. Public Access to Coastal Resources: Conflict Management, Public Trust and Rolling Easements As more people, industries and developmental activities move to the coastal areas of South Asia to capitalize on economic opportunities unavailable in the hinterlands, conflicts can arise between the different users. For instance, coastal tourism projects tend to push traditional fishing communities away from beachheads, which they use for fishing operations and for cultural and recreation purposes.53 This requires that a coastal law must seek to protect the rights hitherto enjoyed by traditional coastal communities, especially their right of ingress and egress for work, recreation and living, and simultaneously allow for modern development.54 The tendency of the state in this context of conflict among the various coastal zone users has been to displace coastal communities and transfer coastal resources to private players to facilitate economic development to the detriment of coastal communities. The doctrine of public trust as a central tenet in coastal zone management offers an effective and simple solution to such conflicts. The doctrine obliges governments to manage certain natural resources in the best interests of their citizens as fiduciary, without sacrificing the needs of future generations. It protects against discretionary government action and respects the rights of coastal inhabitants.55 If a coastal law is anchored in the 9.2.8

52 53 54

Oceans Act, supra note 11, ss. 2(1), 29 & 31; NZRMA, supra note 19, ss. 8 & 6(e). For more details, see India’s and Sri Lanka’s experience on coastal management, Ch. 3. Israeli Coastal Law, supra note 13, s. 5 (securing a public right of way); SA, Integrated Coastal Management Act, supra note 11, ss. 20 & 29. 55 F. Patrick Hubbard, “The Impact of Lucas on Coastal Development: Background Principles, the Public Trust Doctrine, and Global Warming” (2008) 16 Se Envtl LJ 65 at 82; see also Ch. 5, Part 5.3.

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concept of public trust, it is likely to promote sustainability in coastal zone use and management.56 As well, because private entities generally have the financial and technological resources, they may implement hard armoring measures to protect their coastal lands and properties. In the face of SLR and other phenomena, such measures prevent inland migration of coastal ecosystems like wetlands (coastal squeeze), and produce other harmful environmental consequences. For South Asia, where these problems are common, their coastal laws must implement a version of the concept of rolling easements as developed in the coastal jurisprudence of the United States. 9.2.9 Coastal Resources Conservation and Pollution Control A coastal law must give prominence to conservation and restoration of degraded coastal resources. To this end, it must provide for the identification of coastal resources, their current state, and the degree of dependence of coastal communities on them.57 Once this task is realized, it becomes easier to draft an appropriate conservation strategy for their preservation. In this, ICZM plans assume great importance, as a conservation strategy can be worked through them. In particular, measures should be adopted to protect corals, and restrictions or even prohibitions should be imposed on the extraction of beach sand and other inert materials,58 and protection must be mandated for coastal wetlands and mangroves,59 coastal forests, dunes, other landscapes, islands, antiquities and historical artifacts.60 The protection tools that the law may make provision for include protected areas (including their networks),61 no-take zones, and special management areas.62 Restrictions or prohibitions may be imposed on fishing and other resource extractive activities, particularly where the extraction practice is unscientific, exceeds the carrying capacity, and is destructive of the resource itself.63 Rules can also be prescribed to prevent or regulate development in wetlands, beaches, dune systems, mangroves, coral

56 57 58 59 60 61 62 63

SA, Integrated Coastal Management Act, supra note 11, ss. 11–12. Sri Lanka CCA 1981, supra note 12, s. 11; see also EC, ICZM Recommendation, supra note 22, ch. III. ICZM Protocol, supra note 12, art. 9(2)(e)(i)–(ii). For instance, see CRZN, 2011, supra note 11, ¶7(i). ICZM Protocol, supra note 12, arts. 10–13. UKMCAA, supra note 19, ss. 116–17 & 123. Oceans Act, supra note 11, ss. 35–36. Barbados CZMA 1998, supra note 11, ss. 22 & 27.

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reefs, etc., so that their natural functions (like, storm buffering and carbon sequestration potential) are preserved.64 As described earlier, there is a close relationship between water management and coastal health. This is why the law must be crafted to ensure protection of estuaries and deltas.65 As well, groundwater management in coastal areas is a critical issue, as rising sea levels may inundate aquifers, as the sea moves inland.66 In keeping with water laws and regulations, groundwater management areas must be declared and permissible consumption volumes determined, based on which water extraction licenses should be granted.67 Once permitted consumption volumes are reached, there should be a cap on further extraction and on the granting of new licenses. As discussed in the preceding chapters, land-based sources of pollution are the primary causes of poor and declining coastal and marine water quality. This not only affects aquatic life and leads to loss of marine habitat; but it also adversely impacts human health and the economic well-being of coastal populations. Since domestic legislations on coastal and marine pollution are limited in South Asia, a coastal law must provide for measures to identify, regulate, and mitigate coastal and marine pollution.68 The law’s general provisions on these aspects must be amplified in an ICZM plan. Among others, the law must mandate the application of the ‘polluter pays’ principle, so that those responsible for harmful polluting activities in the coastal zone take steps to remedy the damage and internalize the costs of the negative impacts of their activities on the coastal zone.69 The law must also obligate the state to carry out such pollution prevention works like establishing plants for the treatment of domestic sewage, and industrial wastes.70 Measures must be adopted to minimize the adverse effects of water discharges from industrial, thermal and nuclear plants to ensure ambient water temperature and quality. Such an approach is extremely important, given that oceans are warming and several coastal fish species are migrating to cooler environments. 64 65 66 67 68

69 70

Ibid., s. 28 (beach protection); Israeli Coastal Law, supra note 13, s. 4. SA, Integrated Coastal Management Act, supra note 11, ss. 33–34; see also Oceans Act, supra note 11, s. 31. For more details regarding the impact of SLR on coastal aquifers, see Ch. 2, Part 2.5.1. For instance, see ICZM Protocol, supra note 12, art. 9(2)(e)(iii). Sri Lanka CCA 1981, supra note 12, s. 25; SA, Integrated Coastal Management Act, supra note 11, ch. 8; Barbados CZMA 1998, supra note 11, s. 29; see NZRMA, supra note 19, ss. 15A–C & 16. SA, Integrated Coastal Management Act, ibid., s. 58; Cal CA, 2013, supra note 34, §30231. CRZN, 2011, supra note 11 at 12, ¶(IV)(a).

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9.2.10 Strengthening and Harmonizing Sectoral Legal Management There may already be a myriad of laws, regulations, and policies applicable to the coastal zone. In fact, sectoral management is a deeply entrenched phenomenon in several coastal countries, including those in South Asia, and this may not help to promote SCD. All the same, sectoral management has its benefits and cannot be done away with. Therefore, it is necessary that the coastal law feeds into, and in turn, is nourished by other laws and policies that have a bearing on coastal zone management.71 Overall, this will help to ensure better enforcement of the coastal law as well. 9.2.11 Adequate Financing and Accountability to the Legislature Successful implementation of the ICZM plan is an expensive undertaking. It requires significant fiscal resources to support the carrying out of the complex tasks that ICZM implementation entails. Most ICZM projects are implemented via funding from international donor agencies. However, in South Asia once external funding dries up, the projects run into trouble.72 Given this, the law must establish an ICZM fund to provide financial support for the implementation of ICZM plans in aid of the preservation, conservation, restoration and development of coastal resources and biodiversity.73 Apart from sustained government financing, the authority in charge of ICZM implementation should have the power to augment its financial resources by imposing environmental management charges, fees, levies and fines on those who use coastal spaces and resources.74 Consequently, this demands that the authority must be accountable to the legislature, for instance, by means of annual reports detailing its activities and expenses in support of them.75 To further regional information sharing, copies of these reports should also be submitted to the South Asian Association for Regional Cooperation (SAARC) Coastal Zone Management Centre, and made available to all members.

71 72 73 74 75

SA, Integrated Coastal Management Act, supra note 11, s. 5; see Israeli Coastal Law, supra note 13, s. 15. The experience of Bangladesh illustrates this. See Ch. 3, Part 3.2.3. Sindh CDA 1994, supra note 19, ss. 17–18. Belize CZMA, supra note 14, ss. 27 & 28; NZRMA, supra note 19, s. 64A(4A). Belize CZMA, ibid., s. 33; Sindh CDA 1994, supra note 19, s. 19; see also Coastal Zone Management Act of 1972, 16 USC §§1458 (review of performance, section 312) & 1459 (records and audit, section 313); see also EC, ICZM Recommendation, supra note 22, ch. VI.

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9.2.12 Developing Capacity and Enhancing Public Awareness Designing and implementing an ICZM program in the face of uncertainties associated with climate change and SLR requires reliance on knowledge and skills from a wide range of disciplines. As made evident in chapter three, South Asian coastal states have outdated and insufficient information on how climate change and SLR may impact their coastal regions. This means that there are hardly any knowledge bases for informed decision-making in respect of ICZM planning and management. Obviously, South Asian nations must not only build the capacity, but they need to do so in order to be able to build reliable profiles of their coastal environment and resources, create SLR planning benchmarks, share data and lessons to increase public awareness of the critical issues at stake in managing their coasts.76 Their coastal laws must, therefore, provide for the creation of specialized institutions to conduct research for results to inform policy and legal development.77 Capacity development must blend traditional knowledge with modern science so that the emerging cadres of national coastal management professionals can design context-based ICZM programs that they can implement and monitor without any external support.78 Public involvement in the ICZM process is extremely important, but this depends on the public’s level of awareness of the issues that the program seeks to redress. To facilitate awareness, local media should be used to inform the public about coastal conservation matters. Published materials should also be made available along with web-based educational resources. In particular, outreach programs and activities must educate the public about the need to maintain healthy coasts and the key roles that communities, groups and individuals can play in this regard.79 In fact the ultimate success of an ICZM process is predicated on the efficacious flow of information.80 9.2.13 Disaster Management and Coastal Community Health Protection The coastal regions of South Asia are prone to disasters like cyclones that constantly exact very heavy tolls in life and property. In the coming years, it 76

See generally Xiamen Huasheng Hong & Xiongzhi Xue, “Building up a Training Base for Integrated Coastal Management through Partnerships in Xiamen” (2006) 49 Ocean & Coast Mgmt 685 (ScienceDirect). 77 Belize CZMA, supra note 14, ss. 8–10; see also Oceans Act, supra note 11, s. 42; see also EC, ICZM Recommendation, supra note 22, ch. IV(3)(h). 78 Biliana Cicin-Sain et al., “Education and Training in Integrated Coastal Management: Lessons from the International Arena” (2000) 43 Ocean & Coast Mgmt 291 at 294 (ScienceDirect). 79 ICZM Protocol, supra note 12, art. 15. 80 Cullinan, supra note 26 at 151.

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is expected that water-borne disasters will be more intense. To combat these tragedies, critical coastal infrastructure must be augmented.81 Measures can include the setting up of coastal shelters and dispensaries and the strengthening of all-weather roads and communication lines. In this regard, coastal management becomes a continuum that ends in disaster management. This means that coastal management must be more anticipatory, while disaster management prepares to respond to post-occurrence impacts. Increasing temperatures have led to increased mosquito borne diseases like malaria and dengue fever. In this regard, water stagnation facilitates this threat to human health, especially where structures in coastal areas are in dilapidated conditions. In this situation, coastal law must obligate governments and local communities to take measures to prevent water stagnation and eliminate other disease-spreading vectors. 9.2.14 Ensuring Compliance and Law Enforcement A coastal law must minimize confrontation and competition among stakeholders, and promote mutual respect for interests. Environmental pollution and natural resource degradation are potentially violations of the human right to live in a clean and healthy environment. Since a coastal law aims to regulate human behavior and secure human rights, fines and other punitive sanctions must be prescribed for its violations.82 Incentives must also be offered to encourage compliance that advances coastal environmental protection and conservation actions. It is common knowledge that good policies and laws on coastal resource management fail because of their poor enforcement. Community involvement affords legitimacy to such laws. As well, it enhances their enforcement because, communities as local ‘feet-on-the-ground,’ are more cognizant of violations than enforcement officials in places far from the coastal zones, or confined to their patrol boats and other activity monitoring devices. Reliance may also have to be placed on satellite-based monitoring and data to determine the exact nature of the violations.83 Overall in the socio-political and administrative realities of South Asia, effective enforcement of coastal laws and the ICZM plans and programs developed pursuant to them will require conscientious commitment of responsible officials at all levels of coastal law and programs administration. The prospect 81 82 83

ICZM Protocol, supra note 12, arts. 22 & 24; CRZN, 2011, supra note 11 at 11, ¶(iii)(j). Barbados CZMA 1998, supra note 11, ss. 40–41; Sri Lanka CCA 1981, supra note 12, ss. 29–30. For information regarding the utility of satellite technology to identify violations of the coastal law, see Ch. 3.

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of success in this regard is increased where genuine involvement of local community leaders is provided for and made operational. 9.3

Coastal Law Reform in South Asia: What Prospects?

The identification and explication of the salient elements for a suitable coastal law regional regime for South Asian coastal states via a modified SASAP, calls for a brief consideration of the feasibility for each of these states to enact such a law or amend its existing laws to absorb these elements. As discussed in chapter three, India enacted its first coastal law, the Coastal Regulation Zone Notification, in 1991.84 Subsequently, 25 amendments were carried out to this law rendering it practically nugatory.85 The most recent Coastal Regulation Zone Notification, 2011,86 replete with inconsistencies,87 only emphasizes that in India adaptation measures and SCD are subsumed to short-term economic goals. Given the scope of policy, and the authority that coastal law allows its enforcers to exercise, it cannot be left to the executive to enact the same as subsidiary legislation. In fact, the Supreme Court of India expressly demands that the legislature translate major policies into law, and not delegate to the executive the power to do so.88 Accordingly, India needs a dedicated statute on ICZM to put an end to the adhocism that characterizes its national legal regime on coastal management. The coastal law has to deal with the consequences of the increasing pressures for more coastal land to promote economic development, resulting in coastal fishing communities being dispossessed of their lands and livelihood. The law must provide for the application of the doctrine of public trust, which has the normative potential to circumscribe the sovereign power of the state. As of now, coastal communities are reluctant to move from harm’s 84

85 86

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88

Declaration of Coastal Stretches as Coastal Regulation Zone (CRZ) and Regulating Activities in the CRZ (SO 114(E)/1991 India), online: Ministry of Environment & Forests, Government of India . Goa Foundation, Goa v Diksha Holdings Private Limited, (2000), [2000] 2 SCC 97 (India SC). Coastal Zone Management Notification 2008 (S0 1761(E)/2008 India), online: Ministry of Environment & Forests, Government of India . Tony George Puthucherril, “Operationalising Integrated Coastal Zone Management and Adapting to Sea Level Rise through Coastal Law: Where Does India Stand?” (2011) 26 Int’l J Mar & Coast L 569 at 596–604 (SwetsWise). Avinder Singh v Punjab, (1979), [1979] AIR SC 321 (India SC); ITC v Assam, (2007) [2007] 9 VST 250 (Gauhati HC).

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way, even in the face of SLR, as they can see that coastal lands, once cleared, will be handed over to private actors. Accordingly, India’s coastal law must expressly secure the rights of coastal communities over their resources, and put them at ease enough to enable them to cooperate in developing national adaptive capacities for the impacts of climate change and SLR. It is anticipated that both Bangladesh and the Maldives will be devastated by climate change and SLR impacts. Yet, they have not enacted any specific coastal laws, but rely on fragmented and general environmental protection laws for the purpose. Bangladesh has utilized a non-legislative process to make some progress in developing ICZM. However, the lack of clarity in regard to entitlements has led to conflicts among coastal users.89 A dedicated coastal law based on the elements identified above, including a clear definition of the ‘coast’ will help minimize these problems and begin to streamline this county’s coastal zone administration. For the Maldives, the need is basic survival, and its focus must be on islands management. The Maldives is currently in the process of developing an ICZM plan, and it would be advisable for it to peg its ICZM practices onto a dedicated coastal law.90 This law must give prominence to conserving the cultural heritage of the islanders, along with their local knowledge, customs and traditions. It must also strike a balance between the robust tourism and fishing industries, which are the primary economic mainstays of this nation with environmental protection and preservation. As explained, Sri Lanka is one of the first countries in Asia to enact a coastal law, the Coast Conservation Act, 1981. Though designed to support ICZM programs, it is incapable of enabling requisite responses to the challenges posed by climate change and SLR. It was overhauled in 2011,91 but it retains centralized coastal management and the use of a single ICZM plan to manage all the coastal regions, ecosystems and resources. In the long-run, this arrangement will not contribute to achieving sustainable development objectives. The country will better promote ICZM and CCCA if it decentralizes its coastal management. Finally, in Pakistan, coastal zone management is essentially legislated by the provinces; the federal government plays a subsidiary role. In any case, the coastal provinces of Sindh and Balochistan must revamp their coastal laws 89 90

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See Ch. 3, Part 3.2.3. (discussing this aspect of Bangladesh’s experience in coastal management). The Marshall Islands, which is also facing an existential crisis, has a dedicated coastal law, the Coast Conservation Act, 1988. See (Marshall Islands), No. PL 1988–13 of 1988. SIDS like Barbados and Cuba have coastal management laws to support ICZM and CCCA. Coast Conservation Act (No. 57 of 1981, Sri Lanka), as amended by Coast Conservation Amendment Act, No. 49 of 2011.

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to incorporate specific measures to control land-based sources of pollution. Since the health of the Indus delta and related ecosystems is in sharp decline, they must link coastal management to integrated river basin management, and in this way, impel the national government to play a greater and necessary role in ICZM implementation. 9.4 Conclusion The reasons why South Asia’s coastal states must cooperate under a regional ICZM regime, include their divergent capacities to respond to the problems posed by SLR and climate change, and the fact that each on its own can barely do much to face these challenges. The elements of responsive ICZM regional regime building set out in this chapter are guidelines on which to build similar and comparable national coastal laws on ICZM, thereby strengthening national efforts to realize SCD goals. And in this regard, despite weaknesses, SAARC possesses considerable potential to facilitate the adoption of the identified elements into an effective regional regime on ICZM and CCCA. Specifically, it can play a catalytic role in assisting coastal countries to reform their coastal laws, taking these elements into account against the backdrop of their own socioeconomic and political contexts. As argued, for the present, a regional instrument on ICZM for South Asia must not impose hard-law binding obligations. In time, the realities of the region, such as the cross-border migration of climate change refugees and the disappearance of more and more coastal regions will likely compel these countries to accept more stringent treaty obligations to promote regional stability and welfare, replete with regional institutional enforcement mechanisms. It must be emphasized that ICZM is not an ultimate panacea to all the problems engendered by degraded coasts. Integrated decision-making is only the starting point for a series of measures that must be adopted simultaneously with CCCA to work for sustainable coastal and ocean development. It follows that a coastal law will not resolve all problems associated with degraded coastal environments and eroding coastlines. As is often said, ‘a law is as good as it is enforced.’ To the extent that a legal framework serves as the bedrock upon which a management superstructure can be built, coastal laws do have utility for South Asian coastal states. With such laws in place, enforcement can be worked on, and, probably, the exigencies of climate change and SLR impacts will force an improvement in this aspect of coastal zone governance in the region, both nationally and as a matter of regional commitment.

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Conclusion 10.1

Moving Towards Sustainable Coastal Development in South Asia This is the worst pain a man can have: to know much and have no power to act.1

These sagacious words of Herodotus resonate now more than ever, particularly in South Asia in relation to the need to balance the seemingly conflicting interests of coastal environment protection and economic development. As the preceding chapters have intoned, coastal zones represent transitory areas where the oceans, which cover two-thirds of the earth’s surface, meet the remaining one-third, the land, to produce several unique, diverse and productive ecosystems. Consequently, coastal areas, ecosystems and resources are of critical importance to a wide variety of terrestrial and aquatic life forms that include the human species. As coastal populations grow, there is a concomitant rise in associated development activities to cater to their needs. Often these activities are not sustainable, and some lead to pollution and decline in the carrying capacity of coastal resources and amenities. Countless reports, recommendations, guidelines and plans of action bemoan the continued degradation of our coastal zones and offer numerous recommendations to improve the situation. Meanwhile, as the experts’ debate, and as governments make concessions to developers, the coastal environment deteriorates. Accentuating and adding to routine coastal degradation are the interrelated issues of climate change and sea level rise (SLR). Today, they are probably the most serious environmental issues confronting the planet, including its ocean and coastal areas. Accordingly, there is demand for improved coastal management to cope with their impacts. The current global effort aims to cap temperature rise at two degrees Celsius above pre-industrial levels. However, in all probability, we may cross this threshold figure by 2050,2 and beyond this, the climate change phenomenon

1 John Marincola, ed., Herodotus: The Histories, Rev ed (London: Penguin Group, 2003) at 506. 2 See generally The World Bank, Turn Down the Heat: Why a 4oC Warmer World Must be Avoided: A Report for the World Bank by the Potsdam Institute for Climate Impact Research and Climate Analytics (Washington DC: The World Bank, 2012).

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will become highly disruptive and dangerous.3 To prevent this, deep cuts in emissions of green house gases, their capture, sequestration and re-use must be implemented. The truth of the matter, however, is that because of the emissions already spewed into the atmosphere, the world has consigned itself to a certain degree of warming and consequent impacts from which there is no escape. Even if we are able to stabilize the temperatures, the negative consequences of climate change and SLR will persist. As discussed throughout this work, the coastal countries of South Asia are unable to respond effectively to these challenges individually. They need to urgently cooperate and coordinate actions among themselves to combat these problems in the region. The international community itself continues to struggle in its efforts to agree on binding mitigation targets.4 For developing states, this stalemate heightens their need to undertake climate change adaptation tasks in view of their vulnerabilities to the adverse consequences of climate change. They must look for ways to protect their coastal zones, and the practical tools offered by ICZM seem quite suitable to help them with coastal climate change adaptation (CCCA). In regions like South Asia where millions of people are clumped onto the coastal areas and littoral environments, climate change and SLR cannot be wished away through legislative fiat.5 The challenge before them is to halt or reverse the coastal zone degradations that they experience, while ensuring coastal development.

3 Ibid. 4 Greenpeace, “What happened in Doha?: Analysis of the conduct and outcome of the COP 18 climate negotiations” (8 December 2012), online: Greenpeace ; Negotiations are presently under way to develop a new international climate change agreement. To be adopted at the Paris Climate Conference in 2015, and implemented from 2020 onwards, it is expected that this agreement will apply to all Parties. For more details, see European Commission, The 2015 International Agreement, online: European Commission, Climate Action Policies, Climate Negotiations, Future Global Framework . 5 US, HB 819, An Act to Study and Modify Certain Coastal Management Policies, 2011, GA Sess, NC, 2011, online: NCCF ; Scott Huler, “NC Considers Making Sea Level Rise Illegal” (30 May 2012), online: SA Blogs .

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The Message

This book seeks to offer the hope that South Asia is not bound to its seemingly irreversible coastal and environmental degradation, and climate change induced water-borne devastation. The suggestion is that through careful planning and management, it is possible to moderate, at least, some of the major impacts and reduce the costs of SLR and natural hazards in terms of possible losses to human life and property destruction. The growing economic, social and environmental pressures of the region demand that there be a loosening of the prevailing affinity for sector-by-sector decision-making. For coastal zone governance, ICZM offers practical policy and legal possibilities for making this change. In addition, this study has insisted that coastal protection in South Asia must soft pedal on hard shoreline armoring, and prioritize measures that allow natural coastline and resources migration. It also insists that leadership in implementing these measures must be assumed right from the national to the local levels of governmental authority, irrespective of the constitutional structure of the coastal country. South Asia’s need to implement CCCA measures is singularly justified by the needs of the coastal countries to maintain the livelihoods of their very poor and burgeoning coastal communities that lack the capacity to adapt to climate change and SLR impacts without help and support from these states. However limited, the states are resourced enough to embark on the required measures, in the implementation of which they must engage the participation of these communities. In taking those measures, this book further insists that South Asian coastal states must utilize law and legal frameworks to operationalize ICZM. It argues that law supports and facilitates good coastal governance through ICZM. Though ICZM can be implemented in the absence of legislation, in South Asia, coastal laws, reasonably observed, will help to avoid unsustainable development practices and bring order to the fragmented and incongruent schemes for coastal management. Indeed, in this region, dedicated coastal statutes are needed to galvanize ICZM implementation and CCCA to address the root causes of both coastal environmental degradation and social injustice. While several general laws and policies of the various countries can be brought to bear on these problems, they encourage sectoral management, which is not conducive to ICZM. The instrumentality of coastal laws for yielding desired results in this effort, is attested by the fact that several coastal countries and a large volume of international law recognize the necessity to rationalize coastal management under them. As well, this book has pointedly argued that the

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wisdom of cooperative ocean and coastal governance, which is one of the structural prescriptions of the global law of the sea regime, is particularly useful in implementing ICZM measures. For coastal South Asia, the foundations of national coastal laws will help ease them into accepting binding regional legislative duties which, as the years go by, shall become indispensable for success in their purposes to achieve sustainable coastal development (SCD) at national levels. Essentially, an ICZM process that incorporates CCCA through the instrumentality of law will strengthen coastal governance and will help secure SCD. In sum, the arguments that tie the central issues pursued in this book can be set out in the following five points, namely: 1)

CCCA is not solely about zoning, building codes, hard armoring, floodplain regulations, setback lines, etc. It is a two-pronged process whose implementation utilizes these tools on the one side of the equation. The second part consists of actions and measures to improve the adaptive capacity of coastal communities and to build the resilience of coastal ecosystems. Therefore, any program on CCCA must address both dimensions to be an effective and holistic response to the consequences of climate change and SLR in coastal areas. 2) The objective of all ICZM activities must be to progressively attain SCD, which is to balance economic development, environmental protection, social and distributive justice, and CCCA and mitigation in the goals and outcomes of all activities in the coastal zone. 3) ICZM seeks to place coastal developmental processes on the trajectory of SCD. It seeks to address a vast array of environmental and resources use issues in relation to the coastal zone, such as the causes and effects of coastal and marine pollution, resource depletion, climate change and protection of ecologically significant areas, enhancement of livelihood opportunities and poverty alleviation—all to be secured through a participatory process. In a nutshell, the enlightened forward-thinking coastal zone management process represented by ICZM offers the best possible tools for combating the problems of degraded and constantly eroding coastal areas. It also enables states to more effectively respond to the problems generated for their peoples by the advancing sea. A central message in this regard is the need to inter-link CCCA actions within ICZM efforts to produce sustainable and prudent responses to manage the diverse problems that affect our coasts. 4) Law and dedicated legal instruments are needed to re-engineer coastal zone management for the purposes of attaining sustainable development goals. It is necessary for South Asian coastal nations to invest now

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to strengthen their coastal legal frameworks to promote prospects for optimal coastal management outcomes. Coastal law expresses long-term policy and normative commitment to protect and preserve the coastal environment and to ensure sustainable exploitation of its resources. Its regulatory mechanisms ensure that user conflicts are put through settlement procedures designed to procure equitable outcomes for all parties. Law also imposes duties, lays down prescriptive rules, strengthens good coastal governance by providing a framework to implement sustainability principles, sustains the coastal management process, and more importantly, effectuates linkages between ICZM and CCCA. 5) The South Asian coastline is more vulnerable today than at any time in the past, and it continues to be battered by incessantly intense cyclonic storms, salinity ingress, sea surges, rising sea surface temperatures and SLR. Meanwhile, coastal management problems in this region are essentially treated as subsidiary to short-term national economic objectives. The impact of this state of affairs on fisher folk and other traditional coastal communities is deepening poverty. Not only are the national regimes on ICZM that are currently relied on to deal with the underlying challenges patchy, and their administration ineffectual, but they also do not bring together matters that are central to the ICZM challenge in view of the enormity of the individual national problems to which these regimes must apply. In this scenario, the facilitation of an orientation to more viable national coastal laws by a soft law regional instrument will help introduce more efficacious principles into national ICZM law, enhance cooperative coastal management in the region, weaken inter-state antagonism, and create a congenial atmosphere for settling resource sharing disputes among the states. 10.3 Epilogue While climate change and tempestuous seas may not result in the total annihilation of life on earth, it is certain that their consequences will make the planet that succeeding generations inherit, vastly different from the one that we inherited from our forefathers. Sandy beaches, by then, will more or less have completely been replaced by concrete sea walls. Most marine species, corals, sea-grass beds, mangroves and other organisms will be specimens for public viewing in museums and aquariums. Traditional fisheries will have collapsed, and several island nations will be completely wiped off the map. One wonders what the South Asian region will look like in that not too far future. Probably, a conscientious commitment to ICZM implementation that links this process

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chapter 10

with CCCA through appropriate coastal laws may help South Asia to hold such a prospect at bay, hopefully for a reasonable length of years. In the end, the clarion call for change has been sounded and the need to generate a movement towards SCD intimated. The lessons and schematic map for coastal law reform that this study offers are not intended in any way to be iconoclastic; rather, the emphasis is to identify pragmatic solutions that utilize the legal instrumentality to create and pursue problem-solving outcomes. While grounded in a South Asian context, these suggestions are applicable to other coastal countries and regions. But, as for coastal South Asia, it has reached a cul de sac, and the only way out of this seemingly dead end is for its coastal states to work cooperatively to forge regional-level ICZM and CCCA regimes by which to strengthen national-level coastal laws, management systems, adaptive capacity, and implementation processes.

Selected Bibliography 1 Primary Materials  423 1.1 International  423 1.1.1 International Agreements  423 1.1.2 International Resolutions and Decisions  425 1.1.3 International Conference Records  427 1.1.4 International Reports  427 1.1.5 International Cases  429 1.2 National  431 1.2.1 National Laws and Other Government Documents  431 1.2.2 Jurisprudence (National Cases)  441 1.2.3 National Reports  445 2 Secondary Materials  448 2.1 Mainstream Literature  448 2.1.1 Books and Book Chapters  448 2.1.2 Journal Articles, Notes and Comments  455 2.2  Grey Literature Including Unpublished Materials, Theses, and Other Papers  467 2.3 Addresses, Conference Proceedings and Presentations  472 2.4 News and Press Statements  473 2.5 Websites and Other Internet Sources  475 2.6 Other Sources  477 1

Primary Materials

1.1 International 1.1.1

International Agreements

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights: Protocol of San Salvador, 17 November 1988, 28 ILM 161 (entered into force 16 November 1999). African Charter on Human and People’s Rights, 27 June 1981, OAU Doc CAB/LEG/67/3 rev. 5, 21 ILM 58 (entered into force 21 October 1986). Agreement between Sri Lanka and India on the Boundary in Historic Waters between the Two Countries and Related Matters, 26 & 28 June 1974, (entry into force 10 July 1974). Charter of the United Nations, 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945).

424

Selected Bibliography

Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151, 11 ILM 1358 (entered into force 17 December 1975), [World Heritage Convention]. Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151, 11 ILM 1358 (entered into force 17 December 1975). Convention for the Protection of the Mediterranean Sea against Pollution, 16 February 1976, 15 ILM 290 (entered into force 12 February 1978, revised in Barcelona, Spain, on 10 June 1995 as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, entered into force on 9 July 2004). Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 30 ILM 802 (entered into force 10 September 1997) [Espoo Convention]. Convention on the Conservation of Migratory Species of Wild Animals (Bonn), 23 June 1979, 19 ILM 15 (entered into force 1 November 1983). Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 245, 11 ILM 963 (entered into force 21 December 1975) [Ramsar Convention]. Convention relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954). General Agreement on Tariffs and Trade-Multilateral Trade Negotiations (The Uruguay Round): Agreement Establishing the Multilateral Trade Organization [World Trade Organization], 15 December 1993, 33 ILM 13. Indus Waters Treaty, 1960, Pakistan and India, 19 September 1960, (1961) 55:3 AJIL 797 (ratifications exchanged 12 January 1961). International Convention for the Prevention of Pollution from Ships, 2 November 1973, 1340 UNTS 184, 12 ILM 1319 as modified by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, 1340 UNTS 61, 17 ILM 546 (entered into force 2 October 1983). International Treaty on Plant Genetic Resources for Food and Agriculture, Rome 3 November 2001, FAO Conference Res 3/2001, S Treaty Doc No. 110–19 (entered into force 29 June 2004). Kyoto Protocol to the United Nations Framework Convention on Climate Change, 16 March 1998, 37 ILM 32 (adopted at Kyoto 11 December 1997 and entered into force 16 February 2005) [Kyoto Protocol]. Montevideo Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934). Protocol on Integrated Coastal Zone Management in the Mediterranean, [2009] OJ L 34/19.

Selected Bibliography

425

Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2004 ATS 23, 40 ILM 532 (entered into force 17 May 2004). UN Convention on the Law of the Non-navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700 [UN Watercourses Convention]. UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 March 1992, 31 ILM 1312 (entered into force 6 October 1996). UNESCO Convention for the Protection of the World Cultural and Natural Heritage, 16 November 1972, 27 UST 37, 11 ILM 1358 (entered into force 17 December 1975). United Nations Conference on Environment and Development: Convention on Biological Diversity, 5 June 1992, 31 ILM 818 (entered into force 29 December 1993) [CBD]. United Nations Conference on Environment and Development: Framework Convention on Climate Change, 19 June 1993, 31 ILM 849 (adopted at New York on 9 May 1992) [UNFCCC]. United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, 14 June 1992, 31:4 ILM 874. United Nations: Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 21 September 1994, 33 ILM 1328 (adopted 17 June 1994) [UNCCD]. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397, 21 ILM 1261 (entered into force 16 November 1994) [LOSC]. Vienna Convention on the Law of Treaties, 1155 UNTS 331, 8 ILM 679 (entered into force 27 January 1980). World Trade Organization (WTO)—Doha Ministerial 2001: Ministerial Declaration, 14 November 2001, Wt/Min(01)/Dec/I 20 November 2001, 41 ILM 746.

1.1.2

International Resolutions and Decisions

“Action Plan for the Protection of the Marine Environment and the Sustainable Development of the Coastal Areas of the Mediterranean (MAP Phase II)” in UNEP & MAP, Mediterranean Action Plan and Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols, (Informal Document) Revised (Athens: UNEP, 1997). “Male’ Declaration on Global Warming and Sea Level Rise” (1990) 5:2 Int’l J Estuarine & Coast L 401 (HeinOnline). “Plan of Implementation of the World Summit on Sustainable Development” in UN, Report of the World Summit on Sustainable Development Johannesburg, South Africa, 26 August–4 September 2002, A/CONF.199/20* (New York: UN, 2002). A Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, 13 June 1992, 31 ILM 881.

426

Selected Bibliography

Declaration of the United Nations Conference on the Human Environment, 16 June 1972, 11:6 ILM 1416 [Stockholm Declaration]. Declaration on the Protection of the Marine Environment from Landbased Activities (Washington), 23 Ocotber–3 November 1995, 6 RECIEL, 883. EC, Council Resolution of 25 February 1992 on the Future Community Policy Concerning the European Coastal Zone, [1992] OJ, C 59/1. EC, Council Resolution of 6 May 1994 on a Community Strategy for Integrated CoastalZone Management, [1994] OJ, C 135/2. General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources, GA Res 1803 (XVII), UNGA, 17th Sess., Supp (No. 17) at 15, UN Doc. A/5217 (1962). IMO, Guidelines for the Designation of Special Areas under Marpol 73/78, IMO Doc A 22/Res 927 (IMO, 15 January 2002). IMO, Resolution A.982(24) Adopted on 1 December 2005(Agenda item 11) Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, 24th Sess., A 24/Res 982 (6 February 2006). OECD, Guiding Principles Concerning International Economic Aspects of Environmental Policies, Doc. C(72)128 (26 May 1972), 11 ILM 1172. OECD, Recommendation of the Council on Integrated Coastal Zone Management, C(92)114/FINAL (23 July 1992). Priority Actions Programme, Action Plan for the Implementation of the ICZM Protocol for the Mediterranean 2012–2019, PAP/NFP/2011/2, Draft (2011). Ramsar Convention Secretariat, The Ramsar Strategic Plan 2009–2015: Goals, Strategies, and Expectations for the Ramsar Convention’s Implementation for the Period 2009 to 2015, 4th ed., Ramsar Handbooks for the Wise Use of Wetlands, vol. 21 (Gland: Ramsar Convention Secretariat, 2010). Stockholm Declaration of the UN Conference on the Human Environment, 16 June 1972, UN Doc. A/CONF48/14/Rev 1 (1973), 11 ILM 1416. UNEP, Environmental Law Guidelines and Principles on Shared Natural Resources, GC Dec No. 6/14, 33 GAOR, Supp. No. 25 at 154, UN Doc. A/33/25 (1978). UNEP, Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, UNEP(OCA)/LBA/IG.2/7 (5 December 1995). UNEP, Intergovernmental Conference to Adopt a Global Programme of Action for the Protection of the Marine Environment from Landbased Activities, Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, UNEP(OCA)/LBA/IG.2/7 (5 December 1995). UNEP, MAP & PAP, Conceptual Framework and Planning Guidelines for Integrated Coastal Area and River Basin Management (Split, Priority Actions Programme, 1999). UNEPGC, Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities: Note by the Executive Director, UNEP/GCSS.XII/INF/10 (9 February 2012).

Selected Bibliography

427

UNESCO World Heritage Centre, Operational Guidelines for the Implementation of the World Heritage Convention, WHC.12/01 (Paris: Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, 2012). UNGA, Non-legally Binding Instrument on All Types of Forests: Note by the Secretariat, 62nd Sess., A/C.2/62/L.5 (22 October 2007). United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, 14 June 1992, 31:4 ILM 874. United Nations Millennium Declaration, GA Res 55/2, UNGA, UN Doc. A/55/L2 (2000).

1.1.3

International Conference Records

1.1.4

International Reports

Common SAARC Position: United Nations Climate Change Conference (COP 16/CMP 6) Cancun, Mexico, 29 November–10 December 2010, online: online: SAARC, Areas of Cooperation, Environment, COP Meetings, Related Documents, Common SAARC Position for COP16 . Conference of the Contracting Parties, Res VIII.3: Climate Change and Wetlands: Impacts, Adaptation, and Mitigation, Res VIII.3, Ramsar, 8th Mtg, (2002). Conference of the Contracting Parties, The Changwon Declaration on Human Wellbeing and Wetlands, Res X.3, Ramsar, 10th Mtg, (2008). SAARC Ministerial Statement on Cooperation in Environment (“Delhi Statement”), online: India Environment Portal . The Dublin Statement on Water and Sustainable Development, 31 January 1992 (International Conference on Water and the Environment, Dublin, Ireland) online: UN Documents . Thimphu Statement on Climate Change, Sixteenth SAARC Summit Thimphu, 28–29 April 2010, SAARC/SUMMIT.16/15, online: SAARC Home, Declarations, Statements . UN RIO+20 United Nations Conference on Sustainable Development, The Future We Want, A/CONF.216/L.1*, 19 June 2012. UN World Summit on Sustainable Development, Draft Political Declaration Submit­ ted  by the President of the Summit: Corrigendum, A/CONF.199/L.6/Rev.2/Corr.l (4 September 2002). UNCED, Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, [Adopted at Rio de Janeiro, June 13, 1992] 31 ILM 881. UNHRC, Human Rights and Climate Change, Res 7/23, 41st Mtg (28 March 2008).

Adger, W. Neil. Shardul Agrawala & M. Monirul Qader Mirza, “Assessment of Adaptation Practices, Options, Constraints and Capacity” in M.L. Parry et al., eds, Climate

428

Selected Bibliography

Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 717. Bijlsma et al., eds, Luitzen. Preparing to Meet the Coastal Challenges of the 21st Century: Conference Report World Coast Conference 1993 (The Netherlands: Ministry of Public Works and Water Management, April 1994). Bindoff, Nathaniel L. & Jürgen Willebrand, “Observations: Oceanic Climate Change and Sea Level” in Susan Solomon et al., eds, Climate Change 2007: The Physical Science Basis (Cambridge: Cambridge University Press, 2007) 385. Church et al., J.A. “Changes in Sea Level” in J.T. Houghton et al., eds, Climate Change 2001: The Scientific Basis (Cambridge: Cambridge University Press, 2001) 639. Coates et al., David. “Water Demand: What Drives Consumption?” in World Water Assessment Programme, Managing Water under Uncertainty and Risk, vol. 1, The United Nations World Water Development Report 4 (Paris: UNESCO, 2012) 44. Commission on Dams, Dams and Development A New Framework for Decision-Making (London: Earthscan Publications Ltd, 2000). Core Writing Team, Pachauri & Reisinger, eds, Climate Change 2007: Synthesis Report (Geneva: Intergovernmental Panel on Climate Change, 2008). Cruz et al., Rex Victor. “Asia” in M.L. Parry et al., eds, Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007) 469. Dronkers et al., eds, J. Report of the Coastal Management Subgroup: Strategies for Adaption to Sea Level Rise (Geneva: IPCC, Response Strategies Working Group, 1990). Evaluation of the GEF Strategic Priority for Adaptation: Full Report, Evaluation Rep No. 61 (Washington, DC: Global Environment Facility Evaluation Office, July 2011). Gulf of Maine Council on the Marine Environment, Marine Invasive Species: State of the Gulf of Maine Report (np: Gulf of Maine Council on the Marine Environment, 2010). Intergovernmental Panel on Climate Change, Climate Change: The IPCC Response Strategies (Washington DC: Island Press, 1991). IOC/UNESCO et al., A Blueprint for Ocean and Coastal Sustainability (Paris: IOC/ UNESCO, 2011). IOM, Frank Laczko & Christine Aghazarm, eds, Migration, Environment and Climate Change: Assessing the Evidence (Geneva: IOM, 2009). IUCN, “Intentional introductions” Marine Menace: Alien Invasive Species in the Marine Environment (Switzerland: IUCN, 2009). Klugman, Jeni. Human Development Report 2010: 20th Anniversary Edition Human Development Report 2010, The Real Wealth of Nations: Pathways to Human Development (New York: UNDP, 2010).

Selected Bibliography

429

McLean, R.F. & Alla Tsyban, “Coastal Zones and Marine Ecosystems” in James J. McCarthy et al., eds, Climate Change 2001: Impacts, Adaptation, and Vulnerability (Cambridge: Cambridge University Press, 2001) 335. Ochola, Washington. “The Future Today” in UNEP, Africa Environment Outlook 2: Our Environment, Our Wealth (Nairobi: UNEP, 2006) 412. Smit, Barry. & Olga Pilifosova, “Adaptation to Climate Change in the Context of Sustainable Development and Equity” in James J. McCarthy et al., eds, Climate Change 2001: Impacts, Adaptation, and Vulnerability (Cambridge: Cambridge University Press, 2001). The Millennium Development Goals Report 2008 (New York: United Nations Department of Economic and Social Affairs, 2008). UN Commission on Sustainable Development, Report on the Eleventh Session (27 January 2003 and 28 April–9 May 2003), E/2003/29, E/CN17/2003/6, UNESC, Official Records, 2003, Supplement No. 9 (2003). UNDP, Human Development Report 1999: Overcoming Barriers: Human Mobility and Development (New York: Oxford University Press, 1999). UNEP & NEPAD, Kenya, State of the Coast Report 2007: Towards An Integrated Management of Kenya’s Coastal And Marine Resources, Draft 1 (np, [nd]). UNFAO, Fisheries and Aquaculture Department, Strategy for Fisheries, Aquaculture and Climate Change: Framework and Aims 2011–16 (Rome: FAO, 2012). UNICEF, Emma Back & Catherine Cameron, Our Climate, Our Children, Our Responsibility: The Implications of Climate Change for the World’s Children (np: UNICEF UK, 2008). United Nations, The Millennium Development Goals Report 2010 (New York: United Nations, 2010). Watkins, Kevin. Human Development Report 2007/2008, Fighting Climate Change: Human Solidarity in a Divided World (New York: UNDP, 2007). World Bank, World Development Report 2010: Development and Climate Change (Washington DC: World Bank, 2010). World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987).

1.1.5

International Cases

Aegean Sea Continental Shelf (Greece v Turkey), [1978] ICJ Rep 3. Belize Institute of Environmental Law and Policy (BELPO) Petition to the World Heritage Committee Requesting Inclusion of the Belize Barrier Reef Reserve System in the List of World Heritage in Danger As A Result of Climate Change and for Protective Measures & Actions (15 November 2004), online: UF . Case Concerning Gabčíkovo-Nagymaros Project (Hungary/Slovakia), See [1997] ICJ Rep 7. See Separate Opinion of Vice-President Weeramantry, online: International Court of Justice .

430

Selected Bibliography

Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v Singapore), 12, Order (8 October 2003) 23 (International Tribunal for the Law of the Sea). Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay), [2010] ICJ Rep 14. Climate Justice, Petition to the World Heritage Committee Requesting Inclusion of Belize Barrier Reef Reserve System, in the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures & Actions (15 November 2004), online: Climate Justice, Belize, UNESCO cases . Continental Shelf (Libyan Arab Jarnahiriya/Malta), [1985] ICJ Rep 13. Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (BANGLADESH/MYANMAR), 16, Judgment (14  March 2012) (International Tribunal for the Law of the Sea), online: ITLOS, Search . Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), [2009] ICJ Rep 213. In the Dispute Concerning the Mox Plant, International Movements of Radioactive Materials, and the Protection of the Marine Environment of the Irish Sea (Ireland v United Kingdom), Request for Provisional Measures and Statement of Case of Ireland (9 November 2001) (International Tribunal for the Law of the Sea). In the Matter of Arbitration Between: Guyana v Suriname, Permanent Court of Arbitration, The Hague, Award (17 September 2007). In The Matter of the Indus Waters Kishenganga Arbitration (Pakistan v India)  (2013), (Court of Arbitration), (Arbitrators: Stephen M. Schwebel, Franklin Berman KCMG QC, Howard S. Wheater FREng, Lucius Caflisch, Jan Paulsson, Bruno Simma, Peter Tomka). Lac Lanoux Arbitration (France v Spain), 12 RIAA 281 (1957). Legality of the Threat or Use of Nuclear Weapons Case, Advisory Opinion, [1996] ICJ Rep 226. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, [2001] ICJ Rep 40. Maritime Delimitation in the Area between Greenland and Jan Mayen, [1993] ICJ Rep 38. North Sea Continental Shelf, [1969] ICJ Rep 3. On Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Case No. 17, Advisory Opinion (1 February 2011) (International Tribunal for the Law of the Sea, Seabed Disputes Chamber).

Selected Bibliography

431

Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (7 December 2005), online: INUIT, Media & Reports, Press Releases, Press Releases-2005 . Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), [2007] ICJ Rep 659. The Mox Plant Case (Ireland v United Kingdom), 10, Order (3 December 2001) (International Tribunal for the Law of the Sea). Trail Smelter Case (US v Canada), 3 RIAA 1911 (1941).

1.2 National 1.2.1

National Laws and Other Government Documents

1.2.1.1 Australia 1.2.1.1.1 Constitutional Documents and Statutes (Commonwealth and States) Climate Change (State Action) Act 2008 (Tas). Climate Change Act 2010 (Vic). Coastal Protection Act 1979 (NSW). Coastal Protection and Management Act 1995 (Qld). Coastal Protection Regulation 2011 (NSW). Coastal Waters (State Powers) Act 1980 (Cth). Coastal Waters (State Title) Act 1980 (Cth). Commonwealth of Australia Constitution Act 1900 (Cth). Fisheries Management Act 1991 (Cth). Native Title Act, 1993 (Cth). Seas and Submerged Lands Act 1973 (Cth). Sustainable Planning Act 2009 (Qld). 1.2.1.1.2 Other Legal Documents Australia, Dep’t of Climate Change & Energy Efficiency, online: Dep’t of Climate Change & Energy Efficiency, Council advice to Minister Combet—December 2011 . Australia, Dep’t of Environment and Resource Management, Queensland Coastal Plan (Brisbane: Dep’t of Environment and Resource Management, 2012). Australia, Draft Coastal Protection State Planning Regulatory Provision: Protecting the Coastal Environment October 2012 (Brisbane Qld: Dep’t of State Development, Infrastructure and Planning, 2012).

432

Selected Bibliography

Australia, NSW Coastal Planning Guideline: Adapting to Sea Level Rise (NSW: Dep’t of Planning, 2010). 1.2.1.1.3 Policy Statements and Other Documents Australia, Australia’s Oceans Policy (Canberra, 1998). Australia, Dep’t of Envt, Climate Change & Water NSW, Guidelines for Preparing Coastal Zone Management Plans (Sydney South: Dep’t of Envt, Climate Change & Water NSW, 2010). Australia, Dep’t of Envt, Climate Change & Water, NSW, Code of Practice under the Coastal Protection Act 1979 (Sydney South: Dep’t of Envt, Climate Change & Water, NSW, 2011). Australia, NSW Coastal Policy 1997: A Sustainable Future for the New South Wales Coast (NSW: 1997). Australia, NSW Sea Level Rise Policy Statement (Sydney South: Dep’t of Envt, Climate Change & Water, NSW, 2009). Natural Resource Management Ministerial Council, National Cooperative Approach to Integrated Coastal Zone Management: Framework and Implementation Plan (Canberra: Dep’t of Environment & Heritage, 2006).

1.2.1.2 Bangladesh 1.2.1.2.1 Constitution and Statutes Constitution of the People’s Republic of Bangladesh, 1972. Easements Act, 1882 (No. V of 1882, Bangladesh). East Bengal Protection and Conservation of Fish Act 1950 (No. XVIII of 1950, Bangladesh). Forest Act, 1927 (XVI of 1927, Bangladesh). Territorial Waters and Maritime Zones Act (No. XXVI of 1974, Bangladesh). The Bangladesh Environment Conservation Act, 1995 (No. 1 of 1995, Bangladesh). The Environment Conservation Rules, 1997 (R SRO No. 197-Law/97 of 1997, Bangladesh). The Marine Fisheries Ordinance, 1983 (No. XXXV of 1983, Bangladesh). The State Acquisition and Tenancy Act, 1950, Bangladesh. 1.2.1.2.2 Policy and Miscellaneous Documents Bangladesh, Bangladesh Climate Change Strategy and Action Plan 2008 (Dhaka: MoEF, 2008). Bangladesh, Ministry of Water Resources, Coastal Development Strategy: Approved at the 2nd Meeting of the Inter-Ministerial Steering Committee on ICZMP held on February 13, 2006 (Bangladesh: Water Resources Planning Organization, 2006). Bangladesh, Ministry of Water Resources, Coastal Development Strategy (Dhaka: Water Resources Planning Organization, 2006).

Selected Bibliography

433

1.2.1.3 Barbados 1.2.1.3.1 Statute Coastal Zone Management Act 1988 (No. 39 of 1998, Barbados).

1.2.1.4 Belize 1.2.1.4.1 Statute Coastal Zone Management Act, (Belize), No. 5 of 1998. 1.2.1.4.2 ICZM Plan Belize, Ministry of Forestry, Fisheries, & Sustainable Development Belize Integrated Coastal Zone Management Plan (Coastal Zone Management Authority & Institute, 2013).

1.2.1.5 Canada 1.2.1.5.1 Constitution and Statutes Canadian Environmental Protection Act, SC 1999, c 33. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(13), reprinted in RSC 1985, App II, No. 5. Federal Sustainable Development Act, SC 2008, c 33. Oceans Act, SC 1996, c 31. Sustainable Development Act, RSQ 2006, c D-8.1.1. 1.2.1.5.2 Policy and Miscellaneous Documents Canada, Canada’s Oceans Action Plan: For Present and Future Generations (Ottawa: Communications Branch, 2005). Fisheries & Oceans Canada, Canada’s Oceans Strategy: Our Oceans, Our Future: Policy and Operational Framework for Integrated Management of Estuarine, Coastal and Marine Environments in Canada (Ottawa: Fisheries & Oceans Canada, 2002). Gov’t of Canada, Fisheries and Oceans Canada, National Framework for Canada’s Network of Marine Protected Areas (Ottawa: Fisheries and Oceans Canada, 2011). Halifax Regional Municipality, Regional Municipal Planning Strategy (2006).

1.2.1.6 Cuba 1.2.1.6.1 Laws (Decrees) Decree-Law Number 1: Concerning the Breadth of the Territorial Sea of the Republic of Cuba, 24 February 1977 (Cuba). Decree-Law Number 212-2000: Coastal Zone Management, 8 August 2000 (Cuba).

434 1.2.1.7

Selected Bibliography

European Union

1.2.1.7.1

Binding Instruments (Treaties, Recommendations, and Directives (Including Proposed)) EC, Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 Establishing a Framework for Community Action in the Field of Water Policy, [2000] OJ, L 327/1. EC, Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive), [2008] OJ, L 164/19. EC, Proposal for a Directive of the European Parliament and of the Council Establishing a Framework for Maritime Spatial Planning and Integrated Coastal Management [2013] 0074 (COD). EC, Recommendation of the European Parliament and of the Council of 30 May 2002 Concerning the Implementation of Integrated Coastal Zone Management in Europe, (2002/413/EC) [2002] OJ L 148/24. 1.2.1.7.2 Other Binding Instruments EC, Council Decision of 4 December 2008 on the signing, on behalf of the European Community, of the Protocol on Integrated Coastal Zone Management in the Mediterranean to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (2009/89/EC), [2009] OJ, L 34/17. 1.2.1.7.3 Non-Binding Instruments EC, Council Resolution of 25 February 1992 on the Future Community Policy Concerning the European Coastal Zone, [1992] OJ, C 59/1. EC, Council Resolution of 6 May 1994 on a Community Strategy for Integrated CoastalZone Management, [1994] OJ, C 135/2.

1.2.1.8 Guyana 1.2.1.8.1 Statute Guyana, Environmental Protection Agency, Integrated Coastal Zone Management Action Plan (Guyana: EPA, 2000).

1.2.1.9 India 1.2.1.9.1 Constitutional Documents, Statutes (Federal and State) and Bills Andhra Pradesh Water, Land and Trees Act, 2002 (No. 10 of 2002, Andhra Pradesh, India). Coastal Aquaculture Authority Act (No. 24 of 2005, India).

Selected Bibliography

435

Constitution of India 1950. Draft Traditional Coastal and Marine Fisherfolk (Protection of Rights) Act, 2009 (India). Indian Easement Act 1882 (No. 5 of 1882, India). Indian Fisheries Act, 1897 (4 of 1897, India). Indian Forest Act, 1927 (16 of 1927, India). Northern India Canal and Drainage Act, 1873 (No. 8 of 1873, India). Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (No. 33 of 1989, India). Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 (No. 158 of 2005, India). Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976. The Andhra Pradesh Water, Land and Trees Act, 2002 (No. 10 of 2002, Andhra Pradesh, India). The Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011 (No. 25 of 2011, India). 1.2.1.9.2 Delegated Legislation and Miscellaneous Government Documents Andaman and Nicobar Coastal Zone Management Authority Order (O SO 2058 (E) 2008, India). Coastal Management Zone Notification 2008 (SO 1761 (E)/ 2008, India). Coastal Regulation Zone Notification (N, SO19(E), 2011, India). Coastal Regulation Zone Notification for National Coastal Zone Management Authority (N SO991 (E) 1998, India). Coastal Regulation Zone Notification of 2011 (N SO470 (E) 2002, India). Coastal Zone Management Notification 2008 (S0 1761(E)/2008 India), online: Ministry of Environment & Forests, Government of India . Declaration of Coastal Stretches as Coastal Regulation Zone (CRZ) and Regulating Activities in the CRZ (SO 114(E)/1991 India), online: Ministry of Environment & Forests, Government of India . Island Protection Zone Notification (N, SO20(E), 2011, India). Natural Calamities—Tsunami 2004—Housing Reconstruction Policy 2005 (GO Ms No. 172, Tamil Nadu) online: Revenue (NC III) Department .

1.2.1.10 Israel 1.2.1.10.1 Statute Law for the Protection of the Coastal Environment Law 2004 (No. 5764 of 2004, Israel).

436

Selected Bibliography

1.2.1.11 Kenya 1.2.1.11.1 Statutes Environmental Management and Co-Ordination Act, 1999, (Kenya), No. 8 of 1999. 1.2.1.11.2 ICZM Plans Kenya, National Environment Management Authority, Integrated Coastal Zone Management Action Plan for Kenya, 2011–2015 (Nairobi: NEMA, [nd]). Ministry of Environment and Mineral Resources & NEMA, Integrated Coastal Zone Management (ICZM) Action Plan for Kenya, 2010–2014: Towards Integrated Management of Kenya’s Coastal and Marine Resources [nd].

1.2.1.2

The Maldives

1.2.1.2.1 Constitution and Statutes Constitution of the Republic of Maldives, 2008, translated by Dheena Hussain, online: Ministry of Tourism Arts and Culture . Environment Protection and Preservation Act of Maldives (Law No. 4/93). Environmental Protection and Preservation Act of Maldives, 1993 (Act No. 4/1993, Maldives). Maldives Tourism Act (Law No. 2/99). Maldivian Land Act (Law No. 1/2002, Maldives). The Fisheries Law of the Maldives the Fisheries Law (Law No. 5/87, 1987 Maldives). 1.2.1.12.2 Regulations Maldives, Ministry of Environment, Energy and Water, Environmental Impact Assessment Regulations, 2007 (Maldives, [nd]). 1.2.1.12.3 Policy and Miscellaneous Documents Maldives, GEF, UNDP & Ministry of Environment, Energy & Water, National Adaptation Programme of Action (NAPA) [nd], online: UNFCCC . The Government of Maldives, “Aneh Dhivehi Raajje”: The Strategic Action Plan, National Framework for Development 2009–2013, online: The President’s Office, Republic of Maldives .

1.2.1.13

Marshall Islands

1.2.1.13.1 Statute Coast Conservation Act 1988 (PL 1988-13, Marshall Islands).

Selected Bibliography

1.2.1.14

437

New Zealand

1.2.1.14.1 Statutes Building Act 2004 (NZ), 2004/72. Foreshore and Seabed Act, 2004. Marine and Coastal Area (Takutai Moana) Act 2011 (NZ), 2011/3. Resource Management Act 1991 (NZ), 1991/69. 1.2.1.14.2 Policy and Other Documents New Zealand, Dep’t of Conservation, New Zealand Coastal Policy Statement 2010 (Wellington: Dep’t of Conservation, 2010) policy 24. New Zealand, Ministry for the Envt, Coastal Hazards and Climate Change: A Guidance Manual for Local Government in New Zealand, 2d ed. (Wellington: Ministry for the Envt, 2008).

1.2.1.15 Pakistan 1.2.1.15.1 Statutes Balochistan Coastal Development Authority (Amendment) Act 2003 (No. VII of 2003, Balochistan). Balochistan Coastal Development Authority (Amendment) Ordinance 2001 (No. XVII of 2001, Balochistan). Balochistan Coastal Development Authority Act 1998 (No. 1 of 1998, Balochistan). Coastal Development Authority (Amendment) Act 2006 (No. VIII of 2006, Sindh). Coastal Development Authority Act 1994 (No. XXVIII of 1994, Sindh). Coastal Development Authority Act, 1990, (Kenya), No. 20 of 1990. Easements Act, 1882 (No. V of 1882, Pakistan). Fisheries Act, 1897 (IV of 1897, Pakistan). Forest Act, 1927 (XVI of 1927, Pakistan). Territorial Waters and Maritime Zones Act 1976 (22 December 1976, Pakistan). 1.2.1.15.2 Policy and Miscellaneous Documents IUCN Pakistan & Gov’t of Balochistan, Balochistan Conservation Strategy (Karachi: Strategy (Karachi: IUCN Pakistan & Gov’t of Balochistan, 2000). Pakistan, Ministry of Climate Change, National Climate Change Policy (Islamabad: Ministry of Climate Change, 2012).

1.2.1.16

South Africa

1.2.1.16.1 Constitution, Statutes and Bills Climate Change and Greenhouse Emissions Reduction Act 2007 (SA).

438

Selected Bibliography

Constitution of the Republic of South Africa, 1996, (S Afr), No. 108 of 1996. National Environmental Management Act, (S Afr), No. 1540 of 1998. National Environmental Management: Biodiversity Act, 2004, (S Afr), No. 10 of 2004. National Environmental Management: Integrated Coastal Amendment Bill, 2013, Notice 1046 of 2012, online: South Africa Gov’t Online . National Environmental Management: Integrated Coastal Management Act, (S Afr), No. 24 of 2008. National Environmental Management: Protected Areas Act, 2003, (S Afr), No. 57 of 2003. National Environmental Management: Waste Act, 2008, (S Afr), No. 59 of 2008. Sea-Shore Act, 1935, (S Afr), No. 21 of 1935. 1.2.1.16.2 Policy, Papers and Miscellaneous Documents Coastal Management Policy Programme, White Paper for Sustainable Coastal Development in South Africa: Our Coast, Our Future (Department of Environmental Affairs and Tourism, April 2000). South Africa, Dep’t of Environmental Affairs, National Climate Change Response Green Paper (2010). South Africa, National Climate Change Response White Paper (np, 2011). South Africa, White Paper for Sustainable Coastal Development in South Africa (np: Dep’t of Environmental Affairs & Tourism, 2000).

1.2.1.17

Sri Lanka

1.2.1.17.1 Statutes Coast Conservation (Amendment) Act 1988 (No. 64 of 1988, Sri Lanka). Coast Conservation (Amendment) Act 2011 (No. 49 of 2011, Sri Lanka). Coast Conservation (Amendment) Act, No. 64 of 1988. Coast Conservation Act (No. 57 of 1981 Sri Lanka). Coast Conservation Act (No. 57 of 1981, Sri Lanka), as amended by Coast Conservation Amendment Act, No. 49 of 2011. Coast Conservation Act 1981 (No. 57 of 1981, Sri Lanka), as amended by Coast Conservation (Amendment) Act 1988 (No. 64 of 1988, Sri Lanka). Fauna and Flora Protection Ordinance, 1937 (No. 2 of 1937, Sri Lanka), as amended by Fauna and Flora Protection (Amendment) Act, No. 49 of 1993. Fisheries and Aquatic Resources Act (No. 2 of 1996, Sri Lanka). Marine Pollution Prevention Act, 1981 (No. 59 of 1981, Sri Lanka). Soil Conservation Act (Nos 25 of 1951 & 29 of 1953, Sri Lanka). The Marine Pollution Prevention Act (No. 59 of 1981, Sri Lanka).

Selected Bibliography

439

1.2.1.17.2 ICZM Plans, Policy Documents and Miscellaneous Documents Coast Conservation Department, Revised Coastal Zone Management Plan, Sri Lanka 1997, Rev ed (Colombo: Coast Conservation Department of the Ministry of Fisheries & Aquatic Resources Development, 1997). National Climate Change Adaptation Strategy for Sri Lanka 2011 to 2016: Final Draft (2010), online: Climate Change Secretariat .

1.2.1.18

United Kingdom

1.2.1.18.1 Statutes and Bills Climate Change Act 2008 (UK). Flood and Water Management Act, 2010 (UK), c 29. Localism Act 2011 (UK), c 20. Marine (Scotland) Act, ASP 2010, c 5. Marine and Coastal Access Act 2009 (UK), 2009. UK, Dep’t of the Envt, Northern Ireland, Marine Bill, online: DOENI, As Introduced, . 1.2.1.18.2 Policy and Miscellaneous Documents Environment Agency, Prepare your property for flooding, online: Environment Agency, Home and Leisure, Floods . Shoreline Management Plans—the second generation (SMPs), online: Environment Agency, Research, Planning . UK, DEFRA & EA, “Understanding the Risks, Empowering Communities, Building Resilience: The National Flood and Coastal Erosion Risk Management Strategy for England Presented to Parliament pursuant to Section 7 of the Flood and Water Management Act 2010” (np, 2011). UK, DEFRA, A Strategy for Promoting An Integrated Approach to the Management of Coastal Areas in England (London: Dep’t for Environment, Food & Rural Affairs, 2008). UK, DEFRA, Adapting to Coastal Change: Developing a Policy Framework (London: Dep’t for Environment, Food & Rural Affairs, 2010). Welsh Gov’t, Making the Most of Wales’ Coast: The Integrated Coastal Zone Management Strategy for Wales (2007), online: Welsh Government .

1.2.1.19

United States

1.2.1.19.1 Statutes (Federal and States) California Coastal Act of 1976, 20 PRC §30235. Coastal Public Lands Management Act, 1973 (NRC §§33.003–33.176 (1973)).

440

Selected Bibliography

Coastal Zone Management Act of 1972, Pub L No. 109–58 (codified as amended at 16 USC §1451–1465 (2005)). Federal Coastal Zone Management Act, Pub L No. 92–583, 86 Stat 1280 (codified as amended at 16 USC §1451–1464 (West 1985 & Supp 1999)). Open Beaches Act, 61 NRC §61 (1959). Shoreline Management Act, 1971, Wash RC §90.58 (1971). South Carolina Beachfront Management Act, 1988, SCC tit 48-39 §§250–360. Submerged Lands Act, 1953, 43 USC §§1301–15 (1952). Texas Coastal Coordination Act, 1991, 31 TAC §§501. US, HB 819, An Act to Study and Modify Certain Coastal Management Policies, 2011, GA Sess., NC, 2011, online: NCCF . US, Living Shoreline Protection Act, Md C Ann Envir §16–201 (2008). 1.2.1.19.2 Executive Order US, Office of the Governor of the State of California, Executive Order S-13-08 (14 November 2008). 1.2.1.19.3 Policy and Miscellaneous Documents California Ocean Protection Council, Resolution of the California Ocean Protection Council on Sea‐Level Rise (11 March 2011), online: California State Lands Commission . Texas General Land Office, The Coastal Erosion Planning and Response Act, online: Texas General Land Office, What We Do, Caring for the Coast, Grants & Funding . US Dep’t of Commerce, Coastal Zone Management Program Strategic Plan: Improving Management of the Nation’s Coastal Areas FY 2007–2012, online: US Dep’t of Commerce, Ocean & Coastal Resource Management . US, California Emergency Management Agency & California Natural Resources Agency, California Adaptation Planning Guide: Planning for Adaptive Communities (np: 2012). US, NOAA Office of Ocean and Coastal Resource Management, Adapting to Climate Change: A Planning Guide for State Coastal Managers (Silver Spring, MD: National Oceanic and Atmospheric Administration, 2010). US, State of California Sea-Level Rise Guidance Document (March 2013), online: State of California: Ocean Protection Council .

Selected Bibliography

1.2.2

441

Jurisprudence (National Cases)

1.2.2.1 Australia

Alanvale Pty Ltd & Anor v Southern Rural Water, (2010), VCAT 480 (Austl, VCAT). Byron Shire Council v Vaughan, Vaughan v Byron Shire Council, (2009), [2009] NSWLEC 88 and (No. 2) [2009] NSWLEC 110. Cadzow Enterprises Pty Ltd v Port Phillip CC, (2010), VCAT 634 (Austl, VCAT) online: AustLII . Cooke v. Greater Geelong CC, (2010), VCAT 60 (Austl, VCAT). Mabo v Queensland (No. 2), [1992] HCA 23, 175 CLR 1 (HC). Myers v South Gippsland SC (includes Summary) (Red Dot), (2009), VCAT 1022 (Austl, VCAT) online: AustLII . Myers v South Gippsland SC (No. 2) (includes Summary) (Red Dot), (2009), VCAT 2414 (Austl, VCAT) online: AustLII . Owen v Casey CC (includes Summary) (Red Dot), (2009), VCAT 1946 (Austl, VCAT) online: AustLII . Paul v Goulburn Murray Water Corporation, (2010), VCAT 1755 (Austl, VCAT), online: AustLII . Pearce v Florenca, [1976] HCA 26, 135 CLR 507 (HC). Printz v Glenelg SC, (2010), VCAT 1975 (Austl, VCAT), online: AustLII . Seas and Submerged Lands Act case [1975] HCA 58, 135 CLR 337 (HC). Seifert v Coloc-Otway SC, (2009), VCAT 1453, (Austl, VCAT) online: AustLII . Suburban Blue Print Pty Ltd v Hobsons Bay CC, (2010), VCAT 1272 (Austl, VCAT) online: AustLII . Taip v East Gippsland SC (includes Summary) (Red Dot), (2010), VCAT 1222 (Austl, VCAT) online: AustLII . Wade v Warrnambool CC, (2009), VCAT 2177 (Austl, VCAT) online: AustLII . West Gippsland Catchment Management Authority v East Gippsland SC, (2010), VCAT 1334 (Austl, VCAT) online: .

1.2.2.2 Bangladesh

Farooque v Bangladesh, [1996] WP 998 of 1994, CA 24 of 1995 (Bangladesh SC), online: Environmental Law Alliance Worldwide .

442

Selected Bibliography

1.2.2.3 Canada

Barima v Canada (Minister of Employment and Immigration), (1994) 1 FC 30 (TD). Canada (Attorney General) v Ward, [1993] SCJ 74. Cheung v Canada (Minister of Employment and Immigration), (1993) 2 FC 314 (CA). Fosu v Canada (Minister of Employment and Immigration) (1994), 90 FTR 182, [1994] FCJ 1813. Singh v Canada (Minister of Citizenship and Immigration), 2007 FC 1296, 68 Imm LR (3d) 131. TZU (Re), (2002) RPDD 174. Yang v Canada (Minister of Citizenship and Immigration), 2001 FCJ 1463 (TD).

1.2.2.4 India

Ajit D Padiwal v India, (1998), [1998] AIR 147 (Gujarat HC). Andolan v India, (2000) [2000] (10) SCC 664 (India SC). AP Pollution Control Board v MV Nayudu II, (2000) [2001] 2 SCC 62 (India SC). AP Pollution Control Board v MV Nayudu, (1999) [1999] AIR 812 (India SC). Arumugam Servai v. State of Tamil Nadu, (2011) 6 SCC 405. Arunachal Pradesh v Khudiram Chakma, (1994) [1994] Sup (1) SCC 615 (India SC). Avinder Singh v Punjab, (1979), [1979] AIR SC 321 (India SC). Bhikaji Jagannath Waghdhare, Mumabi v India, Department of Atomic Energy, (2009) [2009] INDLAW 1001 (Bombay HC). Bihar v Murad Ali Khan (1989), [1989] AIR SC 1 (India SC). BK Srinivasan v Karnataka, (1987) [1987] AIR 1059 (SC India). Bombay Environmental Action Group v Maharashtra, (1991) [1991] AIR 301 (Bombay HC). Chairman, Railway Board v Chandrima Das, (2000) [2000] (2) SCC 465 (India SC). Charanlal Sahu v India, (1989), [1990] 1 SCC 613 (India SC). Cochin Trawl Net Boat Operators Association v Kerala, (1992) [1992] AIR 342 (Ker HC). Dighi Koli Samaj Mumbai Rahivasi Sangh, Secretary, Jagannath Ambaji, Mumbai v India, (2009) [2009] INDLAW 797 (Bombay HC). Fomento Resorts and Hotels Ltd v Minguel Martins, (2009) 3 SCC 571 (India SC). Forum for Sustainable Development, Hyderabad v India, (2010) [2010] 5 ALT 189 (Andhra Pradesh HC). Francis Coraile Mullin v Administrator, Delhi, (1981), [1981] 1 SCC 608 (India SC). G Sundarrajan v India (31 August 2012) WP No24770 of 2011 (Madras HC). G Sundarrajan v India (6 May 2013) CA No. 4440 of 2013 (SC India). Goa Foundation, Goa v Diksha Holdings Private Limited, (2000), [2000] 2 SCC 97 (India SC). Goa Foundation, Goa v Diksha Holdings Pvt Ltd, (2001) [2001] 2 SCC 97 (India SC). Gopi Aqua Farms v India, [1997] AIR 3519 (India SC).

Selected Bibliography

443

In Re Networking of Rivers (27 February 2012), WP Civil No. 512 of 2002 (India SC), online: Indian Kannon . Indian Council for Enviro-legal Action v India, (1996), [1996] INDLAW 1074 (India SC). Intellectual Forum v AP, (2006) [2006] 3 SCC 549 (India SC). ITC v Assam, (2007) [2007] 9 VST 250 (Gauhati HC). Jagpal Singh v Punjab, (2011) [2011] (11) SCC 396 (India SC). Kerala v Joseph Antony, (1994) [1994] AIR 721 (India SC). KM Chinnappa v India, (2003) [2003] AIR SC 724 (India SC). Krishnadevi Malchand Kamathia v Bombay Environmental Action Group, (2011), [2011] 2 SCALE 133 (India SC). Ktaer Abbas Habib Al Qutaifi v India, (1998) [1998] INDLAW Guj 69 (Gujarat HC). M/S Ramgopal Estates Pvt Ltd v Tamil Nadu (2 March 2007), WP (Madras HC), online: Indian Kanoon . Maneka Gandhi v India, (1978), [1978] AIR 597 (India SC). MC Mehta v India, (1986), [1987] AIR 1086 (India SC) (Oleum Gas Leak Case). MC Mehta v India, (1997) 11 SCC 312 (India SC). MC Mehta v Kamal Nath, (1997) [1997] 1 SCC 388 (India SC). MI Builders v Radhey Shyam Sahu, (1999) [1999] AIR SC 2468 (India SC). Nandini Sundar v Chattisgarh, (2011) [2011] AIR SC 2839 (India SC). O Fernandes v Tamil Nadu Pollution Control Board (17 December 2004), WP No. 33528 (Madras HC). Parthan v Nayarambalam Grama Panchayath, (2006) [2006] 3 KLT 734 (Kerala HC). People United for Better Living in Calcutta-Public v West Bengal, (1992), [1993] AIR 215 (Calcutta HC). Rambhau Patil v Maharashtra State Road Development Corporation (9 October 2001), WP No. 348 of 2000 (Bombay HC). Ramgopal Estates Private Ltd v Tamil Nadu, (2007) [2007] INDLAW 964 (Madras HC). Ratlam Municipality v Vardichand, (1980), [1980] AIR 1622 (India SC). Research Foundation for Science v India, (2007) [2007] AIR 3118 (India SC). S Jagannath v India, (1997) [1997] 2 SCC 87 (India SC). Samatha v AP (1997), [1997] 8 SCC 191 (India SC). Sanju Panda (Advocate) v Orissa, (2002) [2002] 2 OLR 189 (Orissa HC). Sukhdev Singh v Bhagat Ram, (1975) [1975] AIR 1331 (SC India). Tamil Nadu v Messers Kaypee Industrial Chemicals Private Ltd, (2005), [2005] AIR 304 (Madras HC). The Bombay Environmental Action Group v Maharashtra (6 October 2005) WPs No. 3246 of 2004 & No. 1470 of 2003 & 2208 of 2004 (Bombay HC). The Goa Foundation v The Konkan Railway Corporation, (1992), [1992] AIR 471 (Bombay HC).

444

Selected Bibliography

The Goa Foundation v The North Goa Planning and Development Authority, (1995) [1995] AIR 342 (Bombay HC). The Goa Foundation, Represented by its Secretary v Goa, Through its Chief Secretary, (2000) [2000] 4 Bom CR 709 (Bombay HC). TN Godavarman Thirumalpad v India, (2006) [2006] INDLAW SC 123 (India SC). TN Godavarman Thirumulpad v Ashok Khot, (2006), [2006] 5 SCC 1 (India SC). TN Godavarman Thirumulpad v India, (1996), [1997] 2 SCC 267 (India SC). TN Godavarman Thirumulpad v India, (1997), [1997] 3 SCC 312 (India SC). TN Godavarman Thirumulpad v India, [2012] Writ Petition (C) N0. 202 (India SC). TNSS Steels Private Ltd v India, (2009) [2009] INDLAW 4295 (Madras HC). V Elangovan v The Home Secretary, Tamil Nadu (17 September 2004) WP No. 25586 of 2004 (Madras HC). Vajesingji Joravarsingji v Secty of State for India in Council, (1924), [1924] LR 51, Ind App 357. Vellore Citizens Welfare Forum v India, (1996) [1996] (5) SCC 647 (India SC). Visakha SPCA v India, (2000), [2000] 6 ALT 666 (Andhra Pradesh HC). Visakhapatnam Municipal Corporation v Gov’t of India, Ministry of Environment & Forests (16 August 2001), WP No. 25687/98 of 2001 (Andhra Pradesh HC). West Bengal v Kesoram Industries Ltd, (2004) [2004] 10 SCC 201 (India SC).

1.2.2.5 Kenya

Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, 276 / 2003, online: Human Rights Watch . Rodgers Muema Nzioka v Tiomin Kenya Ltd, (21 September 2001), Civil Case No. 97 of 2001 (Kenya HC) online: Environmental Law Alliance Worldwide .

1.2.2.6

New Zealand

Attorney-General v Ngāti Apa [2003] 3 NZLR 643.

1.2.2.7 Pakistan

In re: Human Rights Case (Environment Pollution in Balochistan), PLD 1994 SC 102 (Pakistan SC). Shehla Zia v WAPDA, (1994) PLD 693 (Pak SC).

1.2.2.8 Philippines

Metropolitan Manila v Concerned Residents of Manila Bay, represented and joined by Divina v Ilas, (2008), GR Nos. 171947–48 (Phil SC), online: Supreme Court of

Selected Bibliography

445

the Philippines . Minors Oposa v Secretary of the Department of Environment and Natural Resources, (1993) [1994] 33 ILM 203 (Philippines SC).

1.2.2.9

Sri Lanka

1.2.2.10

United Kingdom

1.2.2.11

United States

1.2.3

National Reports

Gunaratne v The Homagama Pradeshiya Sabha (3 April 1998), App No. 210/97(FR) of 4 March 1998 (Sri Lanka SC).

Acton v Blundell (1843), 152 ER 1223 (Ex Ch).

Avenal v State, 2004 La LEXIS 2984 (La SC, 2004). Bano v Union Carbide Corp, US Dist LEXIS 4097 (SD NY, 2003). David H. Lucas v South Carolina Coastal Council, 505 US 1003 (1992). Illinois Central Railroad Co v People of the State of Illinois, 146 US 387 (1892). In re Katrina Canal Breaches Consol Litigation, 647 F Supp (2d) 644 (ED La, 2009). In Re Katrina Canal Breaches Litigation, 673 F (3d) 381 (5th Cir 2012). In Re: Katrina Canal Breaches Litigation, 696 F (3d) 436 (5th Cir 2012). JW Luttes v The State of Texas 324 SW 2d 167 (Tex Sup Ct 1958). National Audubon Society v Superior Court of Alpine County, 33 Cal 3d 419. Native Village of Kivalina v ExxonMobil Corp, 663 F Supp (2d) 863 (ND Cal, 2009). Severance v Patterson, 2010 Tex LEXIS 854 (Tex, 2010). Severance v Patterson, 2011 Tex LEXIS 779 (Tex, 2011). Severance v Patterson, 2012 Tex LEXIS 260 (Tex, 2012). Severance v Patterson, 345 SW 3d 18 (Tex Sup Ct 2010). Severance v Patterson, 370 SW 3d 705 (Tex Sup Ct 2012). Stop the Beach Renourishment, Inc v Florida Dep’t of Environmental Protection (2010) USSC 08-1151, 130 S Ct 2592 (2010) . Village of Euclid v Amber Realty Company, 272 US 365, 47 S Ct 114, 71 L Ed 303, 1926 US LEXIS 8.

Antigua and Barbuda, Antigua and Barbuda’s Second National Communication on Climate Change (2009), online: UNFCCC . Australia, Dep’t of Climate Change, Climate Change Risks to Australia’s Coast: A First Pass National Assessment (Dep’t of Climate Change, 2009).

446

Selected Bibliography

Bahrain, Public Commission for the Protection of Marine Resources, Environment and Wildlife, Bahrain’s Second National Communication under the United Nations Framework on Climate Change (Bahrain, 2012). Bangladesh, Ministry of Environment and Forest, National Adaptation Programme of Action (NAPA), Final Report (November 2005). Belize, Second National Communication to the Conference of the Parties of the United Nations Framework Convention on Climate Change (Belmopan, 2009). Cambodia, Ministry of Environment, Cambodia’s Initial National Communication under the United Nations Framework Convention on Climate Change (Cambodia: Ministry of Environment, 2002). Cape Verde, Ministry of Environment and Agriculture, National Meteorology and Geophysics Institute & UNFCCC, National Adaptation Programme of Action on Climate Change 2008–2012 (Executive Version, December 2007). China, Initial National Communication on Climate Change (Beijing, 2004). Commonwealth of Dominica, Initial National Communication under the United Nations Framework Convention on Climate Change (Roseau: Environmental Coordinating Unit, Ministry of Agriculture and the Environment, 2001). Cook Islands, National Environment Service, Cook Islands Second National Communication under the United Nations Framework Convention for Climate Change (Cook Islands: National Environment Service, 2011). DEFRA, UK Climate Change Risk Assessment: Government Report (Norwich: The Stationery Office, 2012). Dela, Jinie D.S. Fourth Country Report from Sri Lanka to the United Nations Convention on Biological Diversity (2009). EC, Alan Pickaver et al., eds, Our Coast: ICZM in Europe, Integrated Coastal Zone Management Participation Practices in Europe (Luxembourg: Publications Office of the EU, 2010). Egypt, Egypt Second National Communication under the United Nations Framework Convention on Climate Change (Cairo: Egyptian Environmental Affairs Agency, 2010). Guyana, Guyana Initial National Communication in Response to its Commitments to the UNFCCC (2002). India, CEE Coordination Team, Report of the Public Consultation with Fisherfolks and Community to Strengthen Coastal Regulation Zone (CRZ) Notification, 1991 (Ministry of Environment & Forests, 2010). India, Ministry of Environment & Forests, India’s Second National Report to the Convention on Biological Diversity (Delhi: Ministry of Environment & Forests, 2001). Israel, Ministry of Environmental Protection, Israel’s Second National Communication on Climate Change Submitted under the United Nations Framework Convention on Climate Change (Jerusalem: Ministry of Environmental Protection, 2010).

Selected Bibliography

447

Korea, Korea’s Third National Communication under the United Nations Framework Convention on Climate Change, Low Carbon, Green Growth, online: UNFCCC . Maldives, Ministry of Environment and Energy, State of the Environment 2011 (2011). Mauritius, Second National Communication under the United Nations Framework Convention on Climate Change (Vacoas: Government of Mauritius, 2010). Micallef, Alfred. & Charles V. Sammut, The Second Communication of Malta to the United Nations Framework Convention on Climate Change (Malta: Ministry for Resources and Rural Affairs, 2010). Mozambique, Ministry for Co-ordination of Environmental Affairs, Mozambique Initial National Communication under UN Framework Convention on Climate Change (Ministry for Co-ordination of Environmental Affairs, 2003). Nigeria, Ministry of Environment, Nigeria’s First National Communication under the United Nations Framework Convention on Climate Change (Abuja: Ministry of Environment, 2003). Nova Scotia, Coastal Development: The 2009 State of Nova Scotia’s Coast Report, online: Nova Scotia Canada . Our Coast: Live, Work, Play, Protect: The 2009 State of Nova Scotia’s Coast Technical Report, online: Nova Scotia: Canada . Pakistan, Fourth National Report (Islamabad: Ministry of Environment, 2009). Saint Lucia, Second National Communication on Climate Change for Saint Lucia (Saint Lucia: Ministry of Physical Development and the Environment, 2011). Saudi Arabia, Second National Communication: Kingdom of Saudi Arabia (2011). Seychelles, Ministry of Environment & Transport, Initial National Communication under the United Nations Framework Convention on Climate Change (Seychelles: Ministry of Environment & Transport, 2000). Sierra Leone, Sierra Leone Government & UNDP, National Adaptation Programme of Action (NAPA): Final Report (Government of Sierra Leone Ministry of Transport and Aviation, 2007). Singapore, National Environment Agency, Singapore’s Second National Communication under the United Nations Framework Convention on Climate Change (Singapore: National Environment Agency, 2010). Socialist Republic of Vietnam, Vietnam’s Second National Communication to the United Nations Framework Convention on Climate Change (Hanoi: Ministry of Natural Resources and the Environment, 2010). Solomon Islands, Initial National Communications under the United Nations Framework Convention on Climate Change, online: UNFCCC .

448

Selected Bibliography

South Africa, Department of Environmental Affairs, South Africa’s Second National Communication under the United Nations Framework Convention on Climate Change (Pretoria, South Africa: The Department of Environmental Affairs, 2001). Sri Lanka, Ministry of Environment, Sri Lanka’s Second National Communication on Climate Change (Sri Lanka: Climate Change Secretariat, 2011). Suriname, First National Communication under the United Nations Framework Convention on Climate Change (Suriname: National Institute for Environment and Development (NIMOS), 2005). Swaminathan, New Delhi: Ministry of Environment & Forests, 2005. Tanzania, Vice President’s Office, Initial National Communication under the United Nations Framework Convention on Climate Change (UNFCCC) (Tanzania: Vice President’s Office, 2003). Thailand, Thailand’s Second National Communication under the United Nations Framework Convention on Climate Change (Bangkok: Ministry of Natural Resources & Environment, 2010). Tonga, Lu’isa Tu’i’afitu-Malolo, ed., Second National Communication (Nuku’alofa, Tonga: Second National Communication on Climate Change Project, 2012). Turkey, Ministry of Environment & Forestry, First National Communication of Turkey on Climate Change Under the United Nations Framework Convention on Climate Change (Ankara: Ministry of Environment & Forestry, 2007). UK, Houses of Parliament, “Sea Level Rise”, Post Note, No. 363 (2010). United Arab Emirates, Ministry of Energy, Second National Communications to the Conference of the Parties of United Nations Framework Convention on Climate Change (Abu Dhabi: Ministry of Energy, 2010). US Commission on Ocean Policy, An Ocean Blueprint for the 21st Century: Final Report (Washington, DC, 2004). Vanuatu, National Communication to the Conference of the Parties to the United Nations Framework Convention on Climate Change (1999). Wellington, Christine. & Rawleston Moore, eds, Barbados’ First National Communications to the United Nations Framework Convention on Climate Change (UNFCCC) (Barbados: Ministry of Physical Development Environment, 2001).

2

Secondary Materials

2.1

Mainstream Literature

2.1.1

Books and Book Chapters

Anderson, Michael R. “Individual Rights to Environmental Protection in India” in Alan E. Boyle & Michael R. Anderson, eds, Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996).

Selected Bibliography

449

Aristotle, Politics, HWC, Davis, ed., translated by Benjamin Jowett (New York: Cosimo Classics, 2008). Baird, Rachel. “The National Legal Framework” in Rachel Baird & Donald R. Rothwell, eds, Australian Coastal and Marine Law (Sydney: The Federation Press, 2011) 45. ———. & Donald R. Rothwell, eds., Australian Coastal and Marine Law (Sydney: The Federation Press, 2011). Ballentine, James A. A Law Dictionary (New Jersey: The Law Book Exchange, Ltd, 2005). Barnett, Jon. & Michael Webber, “Migration as Adaptation: Opportunities and Limits” in Jane McAdam, ed., Climate Change and Displacement Multidisciplinary Perspectives (Oxford and Portland, Oregon: Hart Publishing, 2010). Bentham, Jeremy. J.H. Burns & H.L.A. Hart, A Fragment on Government (Cambridge: Cambridge University Press, 1988). Bhattarai, A.M. “Developing Decentralised Institutions: Towards a Legal Framework” in Anil Agarwal, Indira Khurana & Sunita Narain, Making Water Everybody’s Business (New Delhi: Centre for Science and Environment, 2001) 333. Boyd, David R. The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: UBC Press, 2012). Boyle, Alan. “Globalism and Regionalism in the Protection of the Marine Environment” in Davor Vidas, ed., Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Norway: Cambridge University Press, 2000). Bromley, Daniel W. & Michael M. Cernea, The Management of Common Property Natural Resources: Some Conceptual and Operational Fallacies (Washington, DC: World Bank Publications, 1989). Burroughs, Richard. Coastal Governance (Washington, DC: Island Press, 2011). Byravan, Sujatha. Sudhir Chella Rajan and Rajesh Rangarajan, Sea Level Rise: Impact on Major Infrastructure, Ecosystems and Land along the Tamil Nadu Coast (Madras: CDF, IFMR [nd]). Byrne, J. Peter. & Jessica Grannis, “Coastal Retreat Measures” in Michael B. Gerrard & Katrina Fischer Kuh eds, The Law of Adaptation to Climate Change: U.S. and International Aspects (Illinois: American Bar Association, 2012). Caron, David D. “Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict” in Seoung-Yong Hong & Jon M. Van Dyke, eds, Maritime Boundary Disputes, Settlement Processes, and The Law of the Sea (The Netherlands: Martinus Nijhof, 2009). Christiansen, Silke Marie. Environmental Refugees: A Legal Perspective (Nijmegen: Wolf Legal Publishers, 2010). Cicin-Sain, Biliana. & Robert W. Knecht, Integrated Coastal and Ocean Management: Concepts and Practices (Washington DC: Island Press, 1998). Craik, Neil. The International Law of Environmental Impact Assessment Process, Substance and Integration (Cambridge: Cambridge University Press, 2008).

450

Selected Bibliography

Divan, Shyam. & Armin Rozencranz, Environmental Law and Policy in India: Cases Materials and Statutes, 2nd ed. (India: Oxford University Press, 2001). Farhana, Yamin. & Joanna Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (Cambridge: Cambridge University Press, 2004). Finus, Michael. Game Theory and International Environmental Cooperation, Wallace E Oates & Henk Folmer, eds, New Horizons in Environmental Economics (Glos: Edward Elgar Publishing Limited, 2001). Freestone, David. “International Law and Sea Level Rise” in Robin Churchill & David Freestone, eds, International Law and Global Climate Change, International Environmental Law & Policy Series  (London: Graham & Trotman, 1991). ———. & Ellen Hey, “Origins and Development of the Precautionary Principle” in David Freestone & Ellen Hey, eds., The Precautionary Principle and International Law: The Challenge of Implementation, vol. 31, International Environmental Law and Policy Series (The Hague: Kluwer Law International, 1996). ———. & John Pethick, “Sea Level Rise and Maritime Boundaries: International Implications of Impacts and Responses” in Gerald H. Blake, ed., Maritime Boundaries, vol. 5, World Boundaries (NY: Routledge, reprint 1997). ———. ‘The International Legal Framework for Adaptation’ in Michael B Gerrard and Katrina Fischer Kuh (eds.), The Law of Adaptation to Climate Change: U.S. and International Aspects (American Bar Association, 2012). Freestone, David. “The Precautionary Principle” in Robin Churchill & David Freestone, eds, International Law and Global Climate Change, International Environmental Law & Policy Series (London: Graham & Trotman/Martinus Nijhoff, 1991). Gunawardana, Shamalie. “Legal and Governance Issues of the Tsunami Disaster—The Sri Lankan Experience” in C. Raj Kumar & D.K. Srivastava, eds, Tsunami and Disaster Management: Law and Governance (Hong Kong: Sweet & Maxwell Asia, 2006). Haas, Peter M. “Epistemic Communities and the Dynamics of International Environmental Co-operation” in Volker Rittberger, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993). Hardin, G. “Political Requirements for Preserving our Common Heritage” in H.P. Brokaw, ed., Wildlife and America: Contributions to an Understanding of American Wildlife and its Conservation (Washington DC: Council on Environmental Quality, 1978). Hasenclever, Andreas. Peter Mayer & Volker Rittberger, Theories of International Regimes, 1st ed. (UK: Cambridge University Press, 1997).  Hassan, Daud. Protecting the Marine Environment from Land-Based Sources of Pollution: Towards Effective International Cooperation (Hampshire: Ashgate Publishing Ltd, 2006).

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Hepburn, Samantha. “Native Title in Coastal and Marine Waters” in Rachel Baird & Donald R. Rothwell, eds, Australian Coastal and Marine Law (Sydney: The Federation Press, 2011) 296. Hess, Charlotte. & Elinor Ostrom, “Introduction: An Overview of the Knowledge Commons” in Charlotte Hess & Elinor Ostrom, eds, Understanding Knowledge as a Commons: From Theory to Practice (Cambridge: MIT, 2007). ———. & Elinor Ostrom, eds, Understanding Knowledge as a Commons: From Theory to Practice (Cambridge: MIT, 2007). Iyer, Ramasamy R. “A Maverick View” in Surya P. Subedi, ed., International Watercourses Law for the 21st Century: The Case of the River Ganges Basin (Hampshire: Ashgate Publishing Ltd, 2005). Jayewardene, Hiran W. The Regime of Islands in International Law, Shigeru Oda, ed., 15 Publications on Ocean Development (The Netherlands: Martinus Nijhoff Publishers, 1990). Johnston, Douglas M. The Historical Foundation of World Order: The Tower and the Arena (Leiden: Nijhoff, 2008). Kälin, Walter. “Conceptualising Climate-Induced Displacement” in Jane McAdam, ed., Climate Change and Displacement: Multidisciplinary Perspectives (Oxford and Portland, Oregon: Hart Publishing, 2010). Kay, Robert. & Jacqueline Alder, Coastal Planning and Management, 2d ed. (Oxon: Taylor & Francis, 2005). Keohane, Robert O. “The Analysis of International Regimes: Towards a EuropeanAmerican Research Programme” in Volker Rittberger, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993). Krasner, S.D. “Regimes and the Limits of Realism: Regimes as Autonomous Variables” in Stephen D. Krasner, ed., International Regimes (London: Cornell University Press, 1983). Krishnamoorthy et al., R. “Environmental and Human Impacts on Coastal and Marine Protected Areas in India” in Guido Visconti et al., eds, Advances in Global Change Research: Global Change and Protected Areas (The Netherlands: Kluwer Academic Publishers, 2001) . Kydd, Andrew. & Duncan Snidal, “Progress in Game-Theoretical Analysis of International Regimes” in Volker Rittberger, ed., Regime Theory and International Relations (Oxford: Clarendon Press, 1993). Lane, ed., Charles R. Custodians of the Commons: Pastoral Land Tenure in East and West Africa (London: Earthscan, Publications Ltd, 1998). Linde, ed., Morné Van der. Compendium of South African Environmental Legislation (Pretoria: Pretoria University Law Press, 2006). Marincola, ed., John. Herodotus: The Histories, Rev ed (London: Penguin Group, 2003).

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Marr, Simon. The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law (Publications on Ocean Development) 1st ed. (Martinus Nijhoff, 2003). McCay, Bonnie J. Oyster Wars and the Public Trust: Property, Law, and Ecology in New Jersey History (Tucson: University of Arizona Press, 1998). McLeod et al., Elizabeth. The Honolulu Declaration on Ocean Acidification and Reef Management (Gland: IUCN, 2008). Melbourne Water, Planning for Sea Level Rise: Assessing Development in Areas Prone to Tidal Inundation from Sea Level Rise in the Port Phillip and Westernport Region (Melbourne: Melbourne Water Corporation, 2010). Mishra et al., Arabinda. Common Property Water Resources: Dependence and Institutions in India’s Villages (New Delhi: TERI Press, 2008). Nandan, Satya N. & Shabtai Rosenne, eds., United Nations Convention on the Law of the Sea 1982: A Commentary vol. 3 (The Hague: Martinus Nijhoff, 1995). Nianthi, K.W.G. Rekha. & Rajib Shaw, “Climate Change and its Impact on Coastal Economy of Sri Lanka” in R.R. Krishnamurthy, eds, Integrated Coastal Zone Management—The Global Challenge (Singapore: Research Publishing Services, 2008). Nordquist, ed., Myron H. 2 United Nations Convention on the Law of the Sea, 1982: A Commentary (The Netherlands: Martinus Nijhoff Publishers, Dordrecht, 1993). Olsen, Stephen Bloye. “A Practitioner’s Perspective on Ecosystem Coastal Governance” in Erlend Moksness, Einar Dahl & Josianne Støttrup, eds, Integrated Coastal Zone Management (Oxford: Wiley-Blackwell, 2009) . Oral, Nilufer. Regional Co-operation and Protection of the Marine Environment under International Law: The Black Sea, David Freestone, ed., 16 Legal Aspects of Sustainable Development (The Netherlands: Martinus Nijhoff, 2013). Ostrom, Elinor. Governing the Commons: The Evolution of Institutions for Collective Action, Political Economy of Institutions and Decisions (New York: Cambridge University Press, 1990). ———. Roy Gardner & James Walker, Rules, Games, & Common-Pool Resources (US: University of Michigan Press, 1994). Pedersen, Ole. Alwin Pillai & Anne-Michelle Slater, “Justice and Sustainable Development: Compatibility or Conflict? A Scottish Case Study” in Duncan French, ed., Global Justice and Sustainable Development, Legal Aspects of Sustainable Development (Leiden: Martinus Nijhoff Publishers, 2010). Piketty, Thomas. “The Kuznets Curve: Yesterday and Tomorrow” in Abhijit Vinayak Banerjee, Roland Bénabou & Dilip Mookherjee, eds, Understanding Poverty (New York: Oxford University Press, 2006). Pittock, A. Barrie. & Roger N. Jones, “Adaptation to What and Why?” in E. Lisa F. Schipper & Ian Burton, eds, The Earthscan Reader on Adaptation to Climate Change (London: Earthscan, 2009) .

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Porter, Gareth. & J.W. Brown, Global Environmental Politics (Boulder: Colorado Westview Pres Inc 1991). Puthucherril, Tony George. “India’s Ocean Policy” in Biliana Cicin-Sain, David VanderZwaag & Miriam C. Balgos, eds, Routledge Handbook of National and Regional Ocean Policies (np: Routledge, 2015). ———. “Riparianism in Indian Water Jurisprudence” in Ramaswamy R. Iyer, Water and the Laws in India (New Delhi: SAGE Publications Pvt Ltd, 2009). ———. From Shipbreaking to Sustainable Ship Recycling: Evolution of a Legal Regime, David Freestone, ed., 5 Legal Aspects of Sustainable Development (The Netherlands: Martinus Nijhoff, 2010). Qureshi, M.H. & S. Aparna, “Quest for Land Reforms in Kerala” in Noor Mohammad, ed., Socio-Economic Dimensions of Agriculture, New Dimensions in Agricultural Geography, vol. 3 (New Delhi: Concept Publishing Co, 1992). Rabbani, Golam. A Atiq Rahman & Nazria Islam, “Climate Change and Sea Level Rise: Issues and Challenges for Coastal Communities in the Indian Ocean Region” in David Michel & Amit Pandya, eds, Coastal Zones and Climate Change (Washington, DC: The Henry L Stimson Center, 2010). Ramlogan, Rajendra. Sustainable Development: Towards a Judicial Interpretation, David Freestone, ed., 9 Legal Aspects of Sustainable Development (The Netherlands: Martinus Nijhoff, 2011). Rawls, John. Justice as Fairness: A Restatement, ed. by Erin Kelly (Massachusetts: Harvard University Press, 2001). ———. A Theory of Justice, 1st ed. (Oxford: Oxford University Press, 1999). Robinson, ed., Nicholas A. Agenda 21 & The UNCED Proceedings, vol. 4, 3rd series, International Protection of the Environment (New York: Oceana Publications, Inc, 1993). Rothwell, Donald R. & Rachel Baird, “Australia’s Coastal and Marine Environment” in Rachel Baird & Donald R. Rothwell, eds, Australian Coastal and Marine Law (Sydney: The Federation Press, 2011). Sáez, Lawrence. The South Asian Association for Regional Cooperation (SAARC): An Emerging Collaboration Architecture (Oxon: Routledge, 2011). Salman, Salman M.A. & Kishor Uprety, Conflict and Cooperation on South Asia’s International Rivers: A Legal Perspective, Rudolf V. Van Puymbroeck, ed., Law, Justice and Development Series (Washington, DC: World Bank, 2003). Sands, Philippe. “International Law in the Field of Sustainable Development: Emerging Legal Principles” in Winfried Lang, ed., Sustainable Development and International Law, International Environmental Law and Policy Series (London: Graham & Trotman/ Martinus NIjhoff, 1995). Skjærseth, Jon Birger. “The Effectiveness of the Mediterranean Action Plan”, in Edward L. Miles et al., eds. Environmental Regime Effectiveness: Confronting Theory with Evidence (Cambridge: The MIT Press, 2002).

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Slotau, Friedrich. Fairness in International Climate Change Law and Policy (New York: Cambridge University Press, 2009). Stein, Arthur A, “Coordination and Collaboration: Regimes in an Anarchic World” in Stephen D. Krasner, ed., International Regimes (London: Cornell University Press, 1983). Stephens, Tim. International Courts and Environmental Protection, Cambridge Studies in International and Comparative Law (Cambridge: Cambridge University Press, 2009). Tarlock, A. Dan. “Biodiversity and Endangered Species” in John C. Dernbach, ed., Stumbling Towards Sustainability (Washington, DC: Environmental Law Institute, 2002). The Epic of Gilgamesh (Assyrian International News Agency, Books Online, [nd]), online: AINA, Books, The Epic of Gilgamesh . Thia-Eng, Chua. The Dynamics of Integrated Coastal Management: Practical Applications in the Sustainable Coastal Development in East Asia (Quezon City: GEF/UNDP/IMO Regional Programme for the Prevention and Management of Marine Pollution in the East Asian Seas, 2006). Twining, William. General Jurisprudence: Understanding Law from a Global Perspective, (Cambridge: Cambridge University Press, 2009). Vallega, Adalberto. Fundamentals of Integrated Coastal Management (Dordrecht: Kluwer Academic Publishers, 1999). Verheryn, Roda. Climate Change Damage and International Law: Prevention Duties and State Responsibility (Leiden: Martinus Nijhoff, 2005). ———. “The Legal Framework of Adaptation and Adaptive Capacity” in Joel B. Smith, Richard J.T. Klein & Saleemul Huq, eds, Climate Change, Adaptive Capacity and Development (London: Imperial College Press, 2003). Vlavianos, Nickie. The Intersection of Human Rights Law and Environmental Law, Environmental Education for Judges and Court Practitioners (Calgary: Canadian Institute of Resources Law, 2012). Voigt, Christina. Sustainable Development a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law (Lieden: Martinus Nijhoff, 2009). Weiss, Edith Brown. In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (New York: Transnational Publishers, Inc, 1989). World Commission on Environment & Development, Our Common Future (Oxford: Oxford University Press, 1987). Young, Oran R. “Regime Dynamics: The Rise and Fall of International Regimes” in Oran R Young, International Cooperation Building Regimes for Natural Resources and the Environment (New York: Cornell University Press, 1989).

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Journal Articles, Notes and Comments

455

Abate, Randall S. “REDD, White, and Blue: Is Proposed U.S. Climate Legislation Adequate to Promote a Global Carbon Credits System for Avoided Deforestation in a Post-Kyoto Regime?” (2010) 19 Tul J Int’l & Comp L 95 (HeinOnline). Abel et al., Nick. “Sea Level Rise, Coastal Development and Planned Retreat: Analytical Framework, Governance Principles and an Australian Case Study” (2011) 14 Envtl Sci & Pol’y 279 (ScienceDirect). Adler, Emanuel. & Peter M. Haas, “Conclusion: Epistemic Communities, World Order, and the Creation of a Reflective Research Program” (1992) 46:1 Int’l Organization 367. Alexander, Lewis M. “Regionalism and the Law of the Sea: The Case of Semi-enclosed Seas” (1974) 2 Ocean Devel & Int’l L 151. Ali, A. “Vulnerability of Bangladesh to Climate Change and Sea Level Rise through Tropical Cyclones and Storm Surges” (1996) 92 Water, Air, & Soil Pollution 171. Ali, Abu Muhammad Shajaat. “Rice to Shrimp: Land use/Land Cover Changes and Soil degradation in Southwestern Bangladesh” (2006) 23:4 Land Use Pol’y 421 (ScienceDirect). Alongi, Daniel M. “Mangrove Forests: Resilience, Protection from Tsunamis, and Responses to Global Climate Change” (2008) 76:1 Estuarine, Coastal & Shelf Science 1 (ScienceDirect). ———. “Mangrove Forests: Resilience, Protection from Tsunamis, and Responses to Global Climate Change” (2008) 76 Estuarine, Coastal and Shelf Sci 1 (ScienceDirect). Amjad, A. Shah. I. Kasawani & J. Kamaruzaman, “Degradation of Indus Delta Mangroves in Pakistan” (2007) 1:3 Int’l J Geology 27. Baird, Rachel. Meredith Simons & Tim Stephens, “Ocean Acidification: A Litmus Test for International Law” (2009) 3 Carbon & Climate LR 459. Barnes, Richard A. “Some Cautions about Integrated Oceans and Coastal Management” (2006) 8 Envtl L Rev 247 (HeinOnline). Barresi, Paul A. “Mobilizing the Public Trust Doctrine in Support of Publicly Owned Forests as Carbon Dioxide Sinks in India and the United States” (2012) 23 Colo J Int’l Envtl L & Pol’y 39 (HeinOnline). Barton, Charmian. “The Status of the Precautionary Principle in Australia: Its Emergence in Legislation and as a Common Law Doctrine” (1998) 22 Harv Envtl L Rev 509 (HeinOnline). Bavinck, Maarten. “Caste Panchayats and the Regulation of Fisheries along Tamil Nadu’s Coromandel Coast” (2001) 36:13 Economic & Political Weekly 1088 (JSTOR). Beach, Dana. & Kim Diana Connolly, “A Retrospective on Lucas v. South Carolina Coastal Council: Public Policy Implications for the 21st Century” (2003) 12:1 Se Envtl LJ 1 (HeinOnline). Beckman, Robert. & Brady Coleman, “Integrated Coastal Management: The Role of Law and Lawyers” (1999) 14:4 Int’l J Mar & Coast L 491 (HeinOnline).

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Belfiore, Stefano. “Recent Developments in Coastal Management in the European Union” (2000) 43 Ocean & Coast Mgmt 123 (ScienceDirect). ———. “The Growth of Integrated Coastal Management and the Role of Indicators in Integrated Coastal Management: Introduction to the Special Issue” (2003) 46 Ocean & Coast Mgmt 225 (ScienceDirect). Bhatnagar, Manav. “Reconsidering the Indus Waters Treaty” (2008) 22 Tul Envtl LJ 271 (HeinOnline). Blomquist, Robert F. “Virtual Borders? Some Legal-Geo-Philosophical Musings on Three Globally Significant Fragile Ecosystems under United Nations Agenda 21” (1997) 45 Clev St L Rev 23 (QL). Blumm, Michael C. & Rachel D. Guthrie, “Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision” (2012) 45 UC Davis L Rev 741 (HeinOnline). Bodle, Ralph. “Geoengineering and International Law: The Search for Common Legal Ground” (2010) 46 Tulsa L Rev 305 (QL). Brett, Selene. “Rawls Theory of Justice and His Criticism of Utilitarianism” (1994) UCL Jurisprudence Rev 59 (HeinOnline). Burbridge, Peter. & Sarah Humphrey, “Introduction to Special Issue on the European Demonstration Programme on Integrated Coastal Zone Management” (2003) 31 Coastal Mgmt 121. Cardiff, Todd T. “Conflict in the California Coastal Act: Sand and Seawalls” (2001) 38 Cal WL Rev 225 (HeinOnline). Cerundolo, Pat A. “The Limited Impact of Lucas v. South Carolina Coastal Council on Massachusetts Regulatory Takings Jurisprudence”, Comment, (1998) 25:2 BC Envtl Aff L Rev 431 (HeinOnline). Chandrasekara, W.U. & MAST Fernando, “Accidental Introduction of Alien Plankton into the Sri Lankan Coastal Zone through Ballast Water of Cargo Ships” (2009) 14 Sri Lanka J Aquatic Sci 87. Chircop, Aldo. & Ryan O’Leary, “Legal Frameworks for Integrated Coastal and Ocean Management in Canada and the European Union: Some Insights from Comparative Analysis” (2012) 13:3 Vt J Envtl L 425 (HeinOnline). ———. “Teaching Integrated Coastal Management: Lessons from the Learning Arena” (2000) 43:4-5 Ocean & Coast Mgmt 343 (ScienceDirect). ———. David VanderZwaag & Peter Mushkat, “The Gulf of Maine Agreement and Action Plan: A Novel but Nascent Approach to Transboundary Marine Environmental Protection” (1995) 19:4 Mar Pol’y 317 (ScienceDirect). Christie, Donna R. “Sea Level Rise and Gulf Beaches: The Specter of Judicial Takings” (2011) 26:2 J Land Use & Envtl L 313 (HeinOnline). Christie, Patrick. “Is Integrated Coastal Management Sustainable?” (2005) 48 Ocean & Coast Mgmt 208 (ScienceDirect).

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Chua, T.-E. “Introduction to the Special Issue on Lessons Learned in Integrated Coastal Management” (1997) 37:2 Ocean & Coast Mgmt 153. Chung, Suh-Yong. “Is the Convention-Protocol Approach Appropriate for Addressing Regional Marine Pollution?: The Barcelona Convention System Revisited” (2004) 13 Penn St Envtl L Rev 85 (HeinOnline). Cicin-Sain et al., Biliana. “Education and Training in Integrated Coastal Management: Lessons from the International Arena” (2000) 43 Ocean & Coast Mgmt 291 (ScienceDirect). Cicin-Sain, Biliana. “Earth Summit Implementation: Progress Since Rio” (1996) 20:2 Mar Pol’y 123 (ScienceDirect). ———. Robert W. Knecht & Gregory W. Fisk, “Growth in Capacity for Integrated Coastal Management Since UNCED: An International Perspective” (1995) 29:1–3 Ocean & Coast Mgmt 93 (ScienceDirect). ———. & Robert W. Knecht, Integrated Coastal and Ocean Management: Concepts and Practices (Washington, DC: Island Press, 1998) at 52; Biliana Cicin-Sain, “Sustainable Development and Integrated Coastal Management” (1993) 21 Ocean & Coast Mgmt 11. ———. & Stefano Belfiore, “Linking Marine Protected Areas to Integrated Coastal and Ocean Management: A Review of Theory and Practice” (2005) 48 Ocean & Coast Mgmt 847 (ScienceDirect) ———. “Sustainable Development and Integrated Coastal Management” (1993) 21 Ocean & Coast Mgmt 11. Courtney, Catherine A. & Alan T. White, “Integrated Coastal Management in the Philippines: Testing New Paradigms” (2000) 28 Coastal Mgmt 39. Craig, Robin Kundis. “A Public Health Perspective on Sea-Level Rise: Starting Points for Climate Change Adaptation” (2010) 15:2 Widener L Rev 521 (HeinOnline). ———. “Protecting International Marine Biodiversity: International Treaties and National Systems of Marine Protected Areas” (2005) 20 J Land Use & Envtl L 333 (HeinOnline). Crawford, Brian R., J. Stanley Cobb & Abigail Friedman, “Building Capacity for Integrated Coastal Management in Developing Countries” (1993) 21 Ocean & Coast Mgmt 311. Cudahy, Richard D. “From Socialism to Capitalism: A Winding Road” (2010) 11 Chi J Int’l L 39 (HeinOnline). Dadon, José R. & Silvia D. Matteucci, “Coastal Zone Management in Buenos Aires, Argentina” in Aldo Chircop, Scott Coffen-Smout & Moira McConnell, eds, Ocean Yearbook, vol 23 (Leiden: Martinus Nijhoff Publishers, 2009) 361. Deng, Francis Mading. “The Global Challenge of Internal Displacement” (2001) 5 Wash UJL & Pol’y 141 (QL).

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Dernbach, John C. “Sustainable Versus Unsustainable Propositions” (2002) 53 Case W Res L Rev 449 (HeinOnline). ———. “Making Sustainable Development Happen: From Johannesburg to Albany” (2004) 8 Alb L Envtl Outlook 173 (HeinOnline). Dernbach, John C. “Sustainable Development as a Framework for National Governance” (1998) 49 Case W Res L Rev 1 (HeinOnline). Desai, Bharat. “The Bhopal Gas Leak Disaster Litigation: An Overview” in Asian Yearbook of International Law, vol. 3 (The Netherlands: Martinus Nijhoff Publishers, 1994) 163. Doelle et al., Meinhard. “The Regulation of Tidal Energy Development Off Nova Scotia: Navigating Foggy Waters” (2006) 55 UNBLJ 27 (HeinOnline). Duong, Tiffany T.V. “When Islands Drown: The Plight of “Climate Change Refugees” and Recourse to International Human Rights Law” (2010) 31 U Pa J Int’l L 1239 (HeinOnline). Elkins, David. “Responding to Rawls: Toward a Consistent and Supportable Theory of Distributive Justice” (2007) 21 BYU J Pub L 267 (QL). Epstein, Richard A. “Lucas v South Carolina Coastal Council: A Tangled Web of Expectations” (1993) 45 Stan L Rev 1369 (QL). Esty, Daniel C. “A Term’s Limits: Many flocked to the banner of sustainable development, but it led them nowhere”, Foreign Policy (1 September 2001). Fabio Zagonari, Fabio. “Integrated Coastal Management: Top–Down vs. CommunityBased Approaches” (2008) 88:4 J Envtl Mgmt 796 (ScienceDirect). Fisher, Emily. “Sustainable Development and Environmental Justice: Same Planet, Different Worlds?” (2002) 26 Environs Envtl L & Pol’y J 201 (HeinOnline). Fitzgerald, Edward A. “New South Wales v. Commonwealth: The Australian Tidelands Controversy” (1991) 14 Loy LA Int’l & Comp L Rev 25 (HeinOnline). Fletcher, Stephen. “The Evolution of Coastal Management Policy in the State of Israel” (2000) 24 Mar Pol’y 395 (ScienceDirect). Friedman, Lawrence M. “Social Welfare Legislation: An Introduction” (1969) 21 Stan L Rev 217 (HeinOnline). Gagain, Michael. “Climate Change, Sea Level Rise, and Artificial Islands: Saving the Maldives’ Statehood and Maritime Claims Through the Constitution of the Oceans” (2012) 23 Colo J Int’l Envtl L & Pol’y 77 (HeinOnline). Galanter, Marc. “Legal Torpor: Why So Little Has Happened in India After the Bhopal Tragedy” (1985) 20 Texas Int’l LJ 273 (HeinOnline). Gardner, Royal C. “Rehabilitating Nature: A Comparative Review of Legal Mechanisms That Encourage Wetland Restoration Efforts” (2003) 52 Cath U L Rev 573. Geisinger, Alex. “Sustainable Development and the Domination of Nature: Spreading the Seed of the Western Ideology of Nature” (1999) 27 BC Envtl Aff L Rev 43 (QL).

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Gibson, John. “Integrated Coastal Zone Management in the European Union” (2003) 31 Coast Mgmt 127. Gill et al., Alison. “The Challenges of Integrating Tourism into Canadian and Australian Coastal Zone Management” (2003) 26 Dalhousie LJ 85 (HeinOnline). Gjerde, Kristina M. & Anna Rulska-Domino, “Marine Protected Areas beyond National Jurisdiction: Some Practical Perspectives for Moving Ahead” (2012) 27 Int’l J Mar & Coast L 351 (HeinOnline). Glavovic, Bruce C. “A New Coastal Policy for South Africa” (2000) 28:3 Coast Mgmt 261. Glazewski, Jan. & Marcus Haward, “Towards Integrated Coastal Area Management: A Case Study in Co-operative Governance in South Africa and Australia” (2005) 20 Int’l J Mar & Coast L 65 (HeinOnline). Gogarty, Brendan. “Climate-change Displacement: Current Legal Solutions to Future Global Problems” (2011) 21:1 JL Information & Sci 167 (HeinOnline). Grimsditch, Gabriel. “Options for Blue Carbon within the International Climate Change Framework” (2011) 11:2 Sustainable Dev L & Pol’y 22 (HeinOnline). Guruswamy, Lakshman. “International Environmental Law: Boundaries, Landmarks, and Realities” (1995) 10 Nat Resources & Env’t 43 (HeinOnline). Hall et al., Tim. “Advancing Objectives-based., Integrated Ocean Management Through Marine Spatial Planning: Current and Future Directions on the Scotian Shelf off Nova Scotia, Canada” (2011) 15:2 J Coast Conservation 247. Hankey, David Lawrence. “Sections 9 and 10 of the Rivers and Harbors Act of 1899: The Erosion of Administrative Control by Environmental Suits” [1980] Duke LJ (HeinOnline) 170. Hardin, Garrett.“The Tragedy of the Commons” (1968) 162:3859 Sci 1243 (JSTOR). Harper, Christina K. “Climate Change and Tax Policy” (2007) 30:2 BC Int’l & Comp L Rev 411 (HeinOnline). Heemskerk, Matthew. “National Efforts at Integrated Coastal Zone Management: The Canadian, Australian and New Zealand Experiences”, Notes, (2001) 10 Dal J Leg Stud 158 (HeinOnline). Hildebrand, Lawrence P. & Aldo Chircop, “A Gulf United: Canada-U.S. Transboundary Marine Ecosystem-based Governance in the Gulf of Maine” (2010) 15 Ocean & Coastal LJ 339 (QL). Hong, Xiamen Huasheng. & Xiongzhi Xue, “Building up a Training Base for Integrated Coastal Management through Partnerships in Xiamen” (2006) 49 Ocean & Coast Mgmt 685 (ScienceDirect). Hopenstand, Dafna. “Global Warming and its Impact on Near-Shore Communities: Protection Regimes for Fish and Coastal People Affected by Coral Reef Damage” (2002) 8 Wis Envtl LJ 85 (QL). Hsu, Shi-Ling. “What is a Tragedy of the Commons? Overfishing and the Campaign Spending Problem” (2005) 69 Alb L Rev 75 (QL).

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Huang, J.C.K. “Climate Change and Integrated Coastal Management: A Challenge for Small Island Nations” (1997) 37:1 Ocean & Coast Mgmt 95 (ScienceDirect). Hubbard, F. Patrick. “The Impact of Lucas on Coastal Development: Background Principles, the Public Trust Doctrine, and Global Warming” (2008) 16 Se Envtl LJ . Iftekhar, MS. & MR Islam, “Managing Mangroves in Bangladesh: A Strategy Analysis” (2004) 10 J of Coastal Conservation 139. Illangasekare et al., Tissa. “Impacts of the 2004 Tsunami on Groundwater Resources in Sri Lanka” (2006) 42 Water Resources Research 1. Islam, Kazi Shakila. Xiong-Zhi Xue & Mohammed Mahabubur Rahman, “Successful Integrated Coastal Zone Management (ICZM) Program Model of a Developing Country (Xiamen, China)—Implementation in Bangladesh Perspective” (2009) 2 J Wetlands Ecology 35. Jacob, Alice. “Modernisation of Indian Water Laws” (1977) 1 Academy L Rev 154. Jacobson, Michael A. “The United Nations’ Regional Seas Programme: How Does it Measure Up?” (1995) 23 Coastal Mgmt 19. Jalil, Abdul. “Modeling Income Inequality and Openness in the Framework of Kuznets Curve: New Evidence from China” (2012) 29 Econ Modelling 309 (ScienceDirect). Johnson et al., Ralph W. “The Public Trust Doctrine and Coastal Zone Management in Washington State” (1992) 67 Wash L Rev 521 (QL). Jones, Lauren F. “Treasuring the Chesapeake: An Analysis of Climate Change and Its Impact on the Chesapeake Bay and Maryland’s Surrounding Coastal Regions”, Comment, (2009) 38 U Balt L Rev 331 (HeinOnline). Kahinda, J. Mwenge. A.E. Taigbenu, R.J. Boroto, “Domestic Rainwater Harvesting as an Adaptation Measure to Climate Change in South Africa” (2010) 35 Physics & Chemistry of the Earth 742 (ScienceDirect). Kaplan, Casey P. “The Act of God Defense: Why Hurricane Katrina & Noah’s Flood Don’t Qualify” (2007) 26 Rev Litig 155 (QL). Kelley, Angela Haren. “Seawater Desalination: Climate Change Adaptation Strategy or Contributor?” (2011) 38 Ecology L Currents 40 (QL). Kettlewellt, Ursula. “The Answer To Global Pollution? A Critical Examination of the Problems and Potential of the Polluter-Pays Principle” (1992) 3 Colo J Int’l Envtl L & Pol’y 429 (HeinOnline). Khadem, Alain. “Protecting Maritime Zones from the Effects of Sea Level Rise” (1998) 6(3) Boundary and Security Bull 76. Khan et al., Tariq Masood Ali. “Sea Level Variations and Geomorphological Changes in the Coastal Belt of Pakistan” (2002) 25:1 Mar Geodesy 159. Khattak, Manzoor Iqbal. Mahmood Iqbal Khattak & Muhammad Mohibullah, “Study of Heavy Metal Pollution in Mangrove Sediments Reference to Marine Environment Along the Coastal Areas of Pakistan” (2012) 44(1) Pakistan J Botany 373.

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